THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE  FEDERAL  SYSTEM 


OF  THE 


ARGENTINE  REPUBLIC 


BY 

L.  S.  Rowe,  Ph.D.,  LL.D. 

PROFESSOR  OF   POLITICAL  SCIENCE   IN   THE   UNIVERSITY   OF  PENNSYLVANIA 


Published  by  the  Carnegie  Institution  of  Washington 
Washington,  1921 


0  I  s 


Carnegie  Institution  of  Washington, 
Publication  No.  258 


THE-PLIHPTON-PRESS 
NOEWOOD-HASS-U-S-A 


CONTENTS 

Preface  v 

Part  I.    Historical  Antecedents:    Relation  op  the  Federal 
Government  to  the  Provinces, 
chapter  page 

I.  Leading  Characteristics  of  the  Argentine  Political  System 3 

II.  The  Foundations  of  Argentine  Democracy 15 

III.  The  Basis  of  the  Argentine  Constitutional  System 23 

IV.  Antecedents  of  the  Argentine  Constitution 33 

V.  Constitution  of  1853  and  the  Amendments  of  I860,  1866,  and  1898 41 

VI.  Division  of  Functions   between   the  Federal   Government  and   Provinces. 
Encroachments  of  Federal  Authority.    Constitutional  Position  of  the 

Provinces 55 

VII.  Principles  and  Practice  of  Federal  Intervention 69 

VIII.  A  Typical  Case  of  Federal  Intervention 83 

Part  II.    The  Organization  and  Principles  of  the  Federal  System. 

IX.  The  Position  of  the  Executive 91 

X.  The  Legislative  Authority 99 

XI.  The  Judiciary 107 

XII.  Constitutional  Guarantees  to  Person  and  Property 113 

XIII.  Liberty  of  Speech  and  of  the  Press:  Religious  Liberty 125 

Bibliography 133 

Appendix  A.  —  Documents  Illustrative  of  the  Constitutional  Development 

of  the  Argentine  Republic 135 

Appendix  B.  —  Constitution  of  the  Argentine  Republic 137 

Appendix  C.  —  Summary  of  Argentine  Electoral  Law 154 

Appendix  D. — Statistics  of  Illiteracy 156 

Index 157 


PREFACE 

"  When  will  it  be  possible  to  eliminate  party  prejudice  from 
the  writing  of  Argentine  history?  "  —  Sarmiento,  Civilizaci6n  y 
Barbarie. 

Every  commentator  on  the  Argentine  constitution  has  emphasized 
and  in  many  cases  exaggerated  the  influence  of  the  constitution  of 
the  United  States  upon  the  form  and  content  of  the  Argentine  federal 
system.1  In  an  opinion  delivered  on  August  21,  1887,  the  supreme 
court  of  the  Argentine  Republic  said : 

"The  system  of  government  under  which  we  are  living  was  not  of  our 
creation.  We  found  it  in  operation,  tested  by  the  experience  of  many  years, 
and  adopted  it  for  our  system.  As  has  been  well  said,  one  of  the  great  ad- 
vantages of  this  plan  has  been  that  we  were  thus  able  to  avail  ourselves  of 
well-established  rules  of  interpretation  which  serve  as  a  guide  in  the  applica- 
tion of  the  fundamental  principles  of  the  constitution  in  all  those  cases  in 
which  we  have  not  altered  the  wording  of  the  instrument." 

Although  the  constitution  of  the  United  States  had  exerted  a 
far-reaching  influence  on  Alberdi,  whose  work  on  the  "Bases  of  the 
Argentine  Constitution"  was  used  as  a  constitutional  guide  by  the 
convention  of  1853,  the  direct  influence  of  the  constitution  of 
the  United  States  on  the  Argentine  system  is  more  clearly  seen  in 
the  constitutional  convention  of  the  Province  of  Buenos  Aires,  con- 
vened in  1860  to  propose  amendments  to  the  federal  constitution. 
It  was  but  natural  that  in  this  convention  the  spirit  of  states'  rights 
should  be  more  pronounced  than  in  the  national  convention  of  1853, 
and  to  support  this  position  constant  reference  was  made  to  the 
provisions  of  the  constitution  of  the  United  States. 

The  chairman  of  the  committee  on  constitutional  amendments  of 
the  Buenos  Aires  convention,  in  the  report  submitted  to  the  conven- 
tion, said: 

"The  federal  form  of  government  once  accepted,  the  committee  has 
been  guided  in  its  recommendations  by  the  provisions  of  a  similar  constitu- 
tion, recognized  as  the  most  perfect,  viz.,  that  of  the  United  States. 

"The  provisions  of  this  constitution  are  most  readily  applicable  to 
Argentine  conditions,  having  served  as  the  basis  for  the  formation  of  the 
Argentine  Confederation.  .  .  .  The  democratic  government  of  the  United 
States  represents  the  last  word  of  human  logic,  for  the  constitution  of  the 
United  States  is  the  only  one  that  has  been  made  for  and  by  the  people.  .  .  . 
It  would,  therefore,  be  both  presumptuous  and  a  proof  of  ignorance  were 
we  to  attempt  any  innovations  in  constitutional  organization,  thus  ignoring 
the  lessons  of  experience  and  the  manifest  truths  accepted  by  the  human 
conscience." 

•  See  Chapter  I. 

v 


vi  Preface 

In  the  convention  of  1860,  as  in  the  convention  of  1853,  there  was 
a  marked  tendency  to  exaggerate  the  influence  of  the  form  of  govern- 
ment upon  the  destinies  of  the  country.  Thus  the  chairman  of  the 
committee  on  amendments  to  the  constitution,  Dr.  Yelez  Sarsfield, 
in  presenting  the  report  of  the  committee,  said: 

"  The  constitution  of  the  United  States  has  assured  the  happiness  of  a 
great  continent  for  more  than  seventy  years.  The  legislators  of  the  Argen- 
tine adopted  this  constitution  as  their  model  .  .  .  but  did  not  respect  its 
sacred  text,  and  with  ignorant  hands  attempted  to  improve  upon  it  by  sup- 
pressing certain  provisions  and  by  amending  others.  Your  committee  has 
done  nothing  more  than  restore  to  our  system  those  portions  of  the  con- 
stitutional law  of  the  United  States  which  the  convention  of  1853  attempted 
to  modify." 

It  is  also  worthy  of  note  that  all  the  early  commentators  on  the 
Argentine  constitution  were  dominated  by  the  principles  formulated 
in  the  constitution  of  the  United  States.1 

Sarmiento's  work  2  is,  in  the  main,  an  attempt  to  prove  that  the 
Argentine  Republic  should  profit  by  the  experience  of  the  United 
States  in  all  constitutional  matters.  The  translation  of  Story's 
"Commentaries,"  by  Nicolas  Antonio  Calvo,3  and  of  a  digest  of  the 
decisions  of  the  supreme  court,  by  Orlando  Bump,4  also  exerted  a 
marked  influence  on  the  political  ideas  of  the  leading  statesmen  and 
writers  of  the  period.  In  1868  Dr.  Jose  Maria  Cantilo  published  a 
translation  of  the  "Federalist,"  which  was  widely  read. 

Late  in  the  seventies  a  reaction  against  this  worship  of  the  con- 
stitution of  the  United  States  became  noticeable.  This  tendency 
first  appeared  in  a  commentary  by  Florentino  Gonzalez.5  and  became 
more  marked  in  the  subsequent  works  of  Jose  Manuel  Estrada,6 
Francisco  Ramos  Meji'a,7  Arist6bulo  del  Valle,8  Manuel  A.  Montes  de 
Oca,9  and  especially  in  the  lucid  work  of  Joaquin  V.  Gonzalez.10  In 
all  these  works  (especially  in  the  last  two)  the  necessity  of  adapting 
the  political  system  to  the  traditions,  environment,  and  dominant 
political  ideas  of  the  people  is  strongly  emphasized.  The  impossi- 
bility of  transplanting  a  foreign  political  system  and  the  insta- 
bility and  unrest  which  necessarily  follow  such  attempts  dominate 
the  constitutional  discussions  in  these  later  writings.  This  same 
tendency  to  test  the  strength  of  the  political  system  by  the  degree  of 

1  See  Rivarola,  Del  Regimen  Federative)  al  Unitario,  Chapter  XII,  Buenos  Aires,  1908. 

*  Comentanos  de  la  Constitution  de  la  Confederaci6n  Argentina,  con  numerosos  documentor 

ilustrativos  del  texto. 

*  Comentario  eobre  la  Constituci6n  federal  de  los  Estados  Unidos,  Buenos  Aires,  1861. 

4  Decisiones  Constitucionales  de  los  tribunales  de  los  Estados  Unidos.     Buenos  Aires,  1866. 

*  Lecciones  para  servir  a  la  enseflania  en  la  Dniversidad  de  Buenos  Aires,  1879. 

*  Derecho  Constitucional. 

'  El  Federalismo  Argentino.     Buenos  Aires,  1889. 

*  Nociones  de  Derecho  Constitucional,  Vol.  I.     Buenos  Aires,  1897. 

*  Lecciones  de  Derecho  Constitucional.     2  vols.     Buenos  Aires,  1902. 
10  Manual  de  la  Constitucion  Argentina.     Buenos  Aires,  1897. 


Preface  vii 

its  adaptation  to  national  characteristics  is  seen  in  the  most  recent 
commentaries,  those  of  Agustin  de  Vedia,:  Perfecto  Araya,  and  Gon- 
zalez Calderon.2 

In  spite  of  the  many  points  of  similarity  in  the  wording  of  the 
constitutions  of  Argentina  and  the  United  States,  the  constitutional 
practice  of  the  two  countries  presents  many  contrasts  of  fundamental 
and  far-reaching  significance.  The  opportunity  is  thus  afforded  to 
study  the  operation  of  constitutional  provisions  identical  in  form 
under  totally  different  conditions.  Although  the  physical  environ- 
ment and  economic  conditions  of  the  Argentine  Republic  present 
many  points  of  similarity  with  certain  regions  of  the  United  States, 
the  political  antecedents  and  traditions  of  the  two  countries  are 
fundamentally  different. 

The  study  of  the  political  institutions  of  the  Argentine  Republic 
offers  material  of  great  value  to  the  student  of  political  science.  An 
analysis  of  the  successive  stages  in  the  constitutional  development  of 
that  country  throws  much  light  on  the  important  problem  of  the 
relation  between  constitutional  form  and  constitutional  practice  and 
at  the  same  time  enables  us  to  secure  a  clear  idea  of  the  nature  of 
the  forces  that  determine  the  operation  of  a  written  constitution. 

The  data  for  this  study  were  collected  during  a  residence  of  fifteen 
months  in  the  Argentine  at  three  different  periods,  the  first  of  six 
months  in  1906-07;  the  second  of  four  months  in  1908;  the  third  of 
five  months  in  1914. 

It  is  impossible  to  make  ample  acknowledgment  for  aid  received 
and  courtesies  enjoyed  from  members  of  the  government,  university 
professors,  and  individual  investigators.  The  unfailing  readiness  to 
render  every  possible  assistance  constitutes  one  of  the  most  gratifying 
souvenirs  of  my  stay.  While  thus  acknowledging  all  these  courtesies, 
I  desire  to  express  a  special  obligation  to  Joaquin  V.  Gonzalez,  ex-presi- 
dent of  the  National  University  of  La  Plata,  and  to  his  lamented 
associate,  Dr.  Agustfn  A.  Alvarez,  vice-president  of  the  same  institu- 
tion. To  their  constant  counsel  and  guidance  any  value  which  this 
monograph  may  possess  is  primarily  due. 

L.  S.  Rowe. 

1  Constitucion  Argentina.     Buenos  Aires,  1907. 

•  Comentario  a  la  Constituci6n  de  la  Naci6n  Argentina.    Buenos  Aires,  1908. 


PART  I. 

HISTORICAL  ANTECEDENTS. 

RELATION  OF  THE  FEDERAL  GOVERNMENT  TO 
THE  PROVINCES. 


CHAPTER  I. 

LEADING  CHARACTERISTICS  OF  THE  ARGENTINE 
POLITICAL  SYSTEM. 

One  of  the  most  serious  obstacles  to  the  scientific  study  of  the 
political  institutions  of  the  South  American  countries  has  been  the 
tendency  to  group  them  in  one  class  and  to  regard  their  history  as  a 
succession  of  revolutions  and  dictatorships.  Any  serious  study  of 
the  political  institutions  of  these  countries  must  at  the  outset  recognize : 

(1)  That  it  is  impossible  to  study  South  America  en  bloc.  Funda- 
mental differences  in  mode  of  settlement,  in  colonial  organization, 
and  in  social  development  subsequent  to  independence  have  deter- 
mined in  each  the  form  of  government  and  the  content  and  operation 
of  political  institutions. 

(2)  That  the  successive  revolutions  and  dictatorships  which  have 
occurred  in  many  of  the  countries  of  South  America  must  be  studied 
as  integral  parts  of  their  constitutional  development,  possessing  a 
far-reaching  institutional  significance  and  in  many  cases  marking  the 
successive  stages  in  the  advance  of  the  political  system  toward  a 
more  democratic  basis  through  the  recognition  of  popular  rights  as 
against  class  privilege. 

The  contrast,  for  instance,  between  the  political  development  of 
Chile  and  the  Argentine  Republic  is  perhaps  greater  than  is  evidenced 
in  the  political  progress  of  France  and  Italy.  The  three  distinct 
streams  of  Spanish  migration  into  the  Argentine  Republic,  viz.,  from 
Cuyo,  from  the  "Alto  Peru,"  and  through  the  River  Plate,  combined 
with  the  inherited  Spanish  local  or  regional  spirit,  laid  the  foundations 
of  Argentine  federalism  and  thwarted  the  attempts  to  establish  a 
unified  and  centralized  government.  In  Chile,  on  the  other  hand, 
the  unity  in  the  conditions  of  settlement  and  the  pronounced  centrali- 
zation which  characterized  not  only  the  form  but  the  actual  operation 
of  the  Spanish  colonial  administration  prevented  the  development  of 
any  "separatist"  spirit  and  led  to  the  growth  and  maintenance  of  a 
unified  form  of  government  which  no  subsequent  upheavals  have  been 
able  to  disturb. 

The  conflict  between  the  federal  and  unitary  principles  constitutes 
one  of  the  most  instructive  chapters  in  the  history  of  many  of  the 
South  American  countries.  In  every  case  this  struggle  represents  far 
more  than  a  mere  clash  between  opposing  political  ideas.  It  mirrors 
a  deeply  rooted  social  struggle,  the  full  significance  of  which  is  only 
now  beginning  to  dawn  upon  the  historians  of  these  countries.1 

1  See  Dr.  Ernesto  Quesada's  study  of  the  conflict  between  the  federal  and  unitary  principles  in 
the  Argentine  Republic  in  a  work  entitled  "La  Epoca  de  Rosas,"  Buenos  Aires,   1898. 

3 


4  The  Federal  System  of  the  Argentine  Republic 

In  no  country  has  this  struggle  been  as  deeply  significant  as  in 
the  Argentine  Republic.  The  constitution  of  1853  is,  it  is  true,  mod- 
eled in  part  after  the  constitution  of  the  United  States,  but  it  is  a 
mistake  to  suppose  that  this  signifies  a  blind  attempt  to  transplant  a 
political  sj'stem  to  unprepared  soil.  On  the  contrary,  a  careful  study 
of  the  antecedents  l  of  the  Argentine  constitution  will  show  that  the 
attempts  made  in  1819  and  1826  to  form  a  unified  state  not  only  failed, 
but  threw  the  country  into  a  series  of  convulsions  which  paved  the 
way  for  the  dictatorship  of  Rosas.  At  that  time  it  was  quite  as  im- 
possible to  establish  a  unified  state  in  Argentina  as  it  would  have 
been  to  establish  a  similar  system  in  the  United  States  at  the  time 
of  the  adoption  of  the  constitution  in  1787,  for  such  a  system  would 
have  involved  the  reduction  of  the  states  of  our  federal  union  to  the 
position  of  provinces. 

The  strong  particularistic  or  sectional  sentiment  inherited  from 
the  Spanish  colonial  epoch,  together  with  the  loyalty  of  the  people  to 
local  leaders  and  the  desire  of  these  leaders  to  maintain  their  position, 
made  the  establishment  of  a  federal  system  inevitable.  Although 
there  existed  nothing  approaching  an  organized  public  opinion,  the 
traditional  and  inherited  views  of  the  people  regarding  political  organi- 
zation rebelled  against  any  attempt  to  destroy  the  identity  of  the  local 
subdivisions  to  which  they  were  attached  and  about  which  were 
clustered  their  hopes  and  aspirations.  The  constitution  of  the  United 
States,  however,  represented  a  convenient  and  above  all  a  thoroughly 
tested  expression  of  the  fundamental  principles  of  federalism,  in 
harmony  with  the  inherited  ideas  and  political  aspirations  of  the 
mass  of  the  people.  The  most  cursory  study  of  Argentine  history 
demonstrates  that  the  national  sanction  given  to  the  federal  system 
in  1853  was  quite  as  inevitable  as  the  adoption  of  a  similar  system  in 
the  United  States  in  1787,  or  in  Germany  in  1871. 

The  establishment  of  a  form  of  government  in  harmony  with  the 
dominant  political  ideas  of  the  people  does  not  constitute  a  guarantee 
that  the  subsequent  development  of  the  system  or  its  actual  opera- 
tion will  conform  to  the  views  of  the  founders  of  the  system.  The 
political  ideals  of  a  people  may  determine  the  establishment  of  a 
particular  form  of  government,  but  its  actual  operation  is  determined 
by  forces  beyond  their  control.  It  is  this  wide  discrepancy  between 
the  views  of  the  framers  of  the  Argentine  constitution  and  the  actual 
operation  of  the  political  system  that  gives  to  its  study  so  deep  an 
interest  to  students  of  political  science. 

While,  therefore,  the  form  of  government  provided  for  in  the 
Argentine  constitution  of  1853  was  the  logical  and  inevitable  out- 
come of  the  political  training  and  the  political  ideas  of  the  people, 
the  development  of  the  political  system  has  been  quite  different  from 
that  which  the  founders  had  in  view. 

1   See  Chapter  IV. 


Leading  Characteristics  of  the  Argentine  Political  System         5 

At  the  time  of  the  adoption  of  the  present  constitution  (1853), 
the  Argentine  Republic,  covering  an  area  of  2,885,620  square  kilo- 
meters, possessed  a  population  of  about  1,000,000  inhabitants,  i.e., 
about  1  inhabitant  to  3  square  kilometers.  There  were  no  rail- 
roads. Taken  as  a  whole,  the  country  was  still  in  the  pastoral  state. 
The  conditions  of  life  were  exceedingly  primitive,  but  the  isolation  of 
the  provinces  served  to  keep  alive  a  distinctively  local  spirit  which 
violently  opposed  any  attempts  at  political  consolidation.  The 
growth  of  population  and  development  of  means  of  communication 
were  very  slow  during  the  first  two  decades  after  the  adoption  of  the 
constitution  of  1853.  In  1860  the  total  population  was  about 
1,210,000  '  with  but  1  inhabitant  to  2.4  square  kilometers.  In  1869, 
the  date  of  the  first  official  census,  the  total  population  had  increased 
to  1,830,214,  or  1  inhabitant  to  1.5  square  kilometers.  Between 
1869  and  1895,  the  date  of  the  second  census,  the  population  more 
than  doubled.  At  the  latter  date  the  total  population  was  4,044,911, 
viz.,  1.4  inhabitants  to  1  square  kilometer.  In  1914,  the  date  of  the 
third  census,  the  population  was  7,905,502,  or  2.6  inhabitants  per  square 
kilometer.  During  this  period  the  railroad  mileage  was  as  follows: 
6  miles  in  1857;  23  miles  in  1866;  439  miles  in  1870;  1,509  miles 
in  1880;  5,658  miles  in  1890;  8,476  miles  in  1896;  12,177  miles  in 
1906;  20,088  miles  in  1913;  20,316  miles  in  1917. 

With  the  increase  of  population,  the  gradual  transition  from 
cattle-raising  to  agriculture,  and  the  higher  standard  of  life  accom- 
panying this  economic  advance,  the  provincial  governments  were 
confronted  with  a  group  of  industrial  and  social  problems,  the  solution 
of  which  required  a  considerable  extension  of  governmental  functions 
and  a  corresponding  increase  in  the  provincial  budgets.  These  new 
demands  upon  the  provincial  governments  emphasized  the  poverty 
and  lack  of  resources  of  the  less  advanced  sections  of  the  republic. 
The  growth  of  the  towns  made  it  necessary  to  improve  sanitary 
conditions  through  the  construction  of  drainage-works  and  adequate 
water-supply.  The  limited  income  of  most  of  the  provinces  would 
not  permit  these  outlays.2  The  widespread  illiteracy 3  aroused 
the  more  enlightened  element  of  the  provincial  population  to  the 
necessity  of  better  school  facilities,  but  it  was  soon  evident  that  the 
provincial  budgets  would  be  unable  to  bear  the  financial  burden 
resulting  from  such  an  extension  of  primary  education. 

In  this  emergency  the  provinces  followed  the  line  of  least  resistance 
and  appealed  to  the  federal  government  for  assistance.  The  political 
effect  of  the  assistance  thus  rendered  we  will  have  occasion  to  examine 

1  Calculated  by  Martin  de  Mowry. 

8  In  1905  the  total  income  of  all  the  provinces  exclusive  of  Buenos  Aires  (i.e.,  thirteen  provinces) 
was  $10,560,000  —  less  than  the  income  of  the  Province  of  Buenos  Aires.  The  total 
income  of  all  the  provinces  was  $22,000,000,  about  one-third  the  total  income  of  the 
federal  government. 

»  In  1904,  of  a  total  of  592,000  electors,  2S5.000  were  iUiterate.     For  1916,  see  Appendix  D. 


6  The  Federal  System  of  the  Argentine  Republic 


in  Chapter  VI.  It  is  sufficient  to  say  that  this  extra-constitutional 
extension  of  federal  power  into  a  domain  reserved  by  the  constitu- 
tion to  the  local  governments  has  been  one  of  the  most  potent  factors 
in  the  decline  of  the  provinces  as  distinctive  political  units  in  the  federal 
system.  Not  only  has  it  weakened  the  ties  of  the  people  to  their 
respective  local  governments,  but  it  has  also  served  to  increase  the 
hold  of  the  federal  authorities  upon  the  provincial  governments.  The 
scramble  for  federal  aid  has  led  to  the  political  subordination  of  the 
provinces  to  the  federal  government.  Thus,  little  by  little,  the  desire 
of  the  provinces  to  partake  of  the  real  or  supposed  federal  plenty  has 
done  more  to  undermine  the  traditional  spirit  of  local  exclusiveness 
than  all  the  years  of  agitation  for  a  unified  government. 

The  movement  presents  many  analogies  with  the  decline  of  local 
self-government  in  the  larger  cities  of  the  United  States.  The  con- 
stant appeal  to  the  state  governments  for  the  solution  of  problems 
which  should  have  been  met  through  local  effort  developed  in  the 
state  legislatures  a  tendency  to  interfere  in  purely  local  affairs,  so 
marked  that  for  a  time  cities  lost  every  vestige  of  local  self-govern- 
ment. It  was  only  after  a  long-continued  struggle,  and  after  the 
passage  of  a  series  of  constitutional  amendments  restricting  the 
powers  of  the  state  legislatures,  that  the  municipalities  regained  a  part 
of  their  power  to  determine  purely  local  questions. 

Another  factor  of  great  importance  in  breaking  down  the  spirit 
of  sectionalism  in  Argentina  has  been  the  rapid  development  of 
means  of  communication  during  the  last  twenty-five  years.  The 
increase  of  railroad  mileage  from  1,560  miles  in  1880  to  21,196  miles 
in  1920  signifies  even  more  than  would  appear  at  first  glance,  for 
during  this  period  the  lines  have  been  extended  to  the  remote  prov- 
inces of  the  north  (Jujuy,  Salta,  Tucuman,  and  Santiago  del  Estero) 
and  to  the  provinces  and  territories  of  the  Andean  region  (La  Rioja, 
Catamarca,  San  Juan,  Pampa,  and  Neuquen). 

The  federal  government,  furthermore,  has  been  gradually  in- 
creasing its  sources  of  revenue  at  the  expense  of  the  provinces.  Thus, 
in  1892  the  entire  internal  revenue  system  was  made  exclusively 
federal.  These  taxes  include  not  merely  the  imposts  on  brewed  and 
distilled  liquors  and  tobacco,  but  also  stamp  duties  on  a  long  list  of 
articles,  such  as  bottled  mineral  waters,  perfumery,  etc. 

This  financial  dependence  of  the  provinces  on  the  federal  govern- 
ment is  not  limited  to  subsidies  for  extraordinary  expenditures,  such 
as  the  construction  of  public  works.  For  many  years  the  federal 
government  has  voted  large  sums  for  the  purpose  of  covering  deficits 
in  the  ordinary  expenditures  of  the  provinces.  In  1914  La  Rioja, 
Catamarca,  Jujuy,  and  San  Luis  each  received  a  subsidy  of  about 
$40,000  per  annum  for  the  purpose  of  meeting  ordinary  adminis- 
trative expenses. 


Leading  Characteristics  of  the  Argentine  Political  System 


The  broad  interpretation  of  certain  clauses  of  the  constitution 
has  further  contributed  toward  diminishing  the  importance  of  the 
provinces  as  political  entities.  Thus  the  provision  granting  to  the 
national  government  the  power  to  encourage  the  construction  of 
railroads  has  been  construed  to  include  the  right  to  grant  franchises 
to  all  lines  which  extend  beyond  the  limits  of  one  province.  As 
there  are  practically  no  infra-provincial  lines,  railroad  franchise 
grants  are  dependent  exclusively  on  the  federal  government.  In 
these  grants  the  national  government  frequently  exempts  the  railroads 
from  all  local  taxation,  thus  depriving  the  provincial  and  municipal 
governments  of  another  important  source  of  revenue. 

The  same  tendency1  toward  the  substitution  of  national  for  pro- 
vincial authority  is  to  be  found  in  the  development  of  the  educational 
system.  Both  secondary  and  university  instruction  are  under  the  direct 
control  of  the  federal  government,  and  through  granting  subsidies  to 
the  provinces  for  primary  schools  the  national  government  has  ac- 
quired far-reaching  powers  over  this  branch  of  the  educational  system. 

This  marked  tendency  toward  the  extension  of  the  power  of  the 
national  government  has  been  interpreted  by  some  Argentine  com- 
mentators as  an  indication  of  the  breaking  down  of  the  federal  system, 
involving  the  gradual  disappearance  of  the  provinces  as  distinct 
political  entities  and  the  establishment  of  a  consolidated,  unified 
state  in  fact  if  not  in  law.2  In  support  of  this  thesis  it  is  possible  to 
adduce  a  formidable  array  of  facts,  but  this  interpretation  fails  to 
take  into  account  the  fundamental  basis  of  every  political  system, 
viz.,  the  political  ideas  of  the  people.  It  is  true  that  many  of  the 
provinces  lack  the  resources  necessary  to  perform  the  functions  with 
which  they  have  been  intrusted,  and  it  is  also  true  that  the  assump- 
tion by  the  national  government  of  many  of  the  obligations  now 
inadequately  performed  by  the  provinces  would  mean  both  a  more 
economical  as  well  as  a  more  efficient  performance  of  these  functions. 
Nevertheless,  any  attempt  at  a  fundamental  change  in  the  constitu- 
tion in  this  direction  is  certain  to  meet  with  violent  opposition  and 
to  rekindle  passions  which,  although  no  longer  appearing  on  the 
surface,  are  none  the  less  latent  in  the  political  temper  of  the  people. 
Advocates  of  new  political  systems  are  too  apt  to  forget  that  the 
political  thought  of  the  mass  of  the  people  is  determined  by  inherited 
formula?  rather  than  by  critical  analysis,  and  that  the  political  ideas 
corresponding  to  these  formulae  perpetuate  themselves  long  after 
the  disappearance  of  the  conditions  out  of  which  they  have  arisen. 
No  one  who  has  visited  the  provinces  of  the  Argentine  Republic  can 
escape  the  conviction  that,  in  spite  of  their  ready  acceptance  of  the 
financial  aid  of  the  federal  government,  the  feeling  of  provincial 
separateness  is  still  deeply  rooted  in  the  minds  of  the  people. 

'  See  Chapter  VI. 

•  See  Rodolfo  Rivarola,  "Del  Regimen  Federative)  al  Unitario."     Buenoa  Aires,  1908. 


8  The  Federal  System  of  the  Argentine  Republic 

The  tendency  toward  concentration  of  power  in  the  central  govern- 
ment is  not  peculiar  to  the  Argentine  Republic,  for  it  represents  a 
process  through  which  all  federal  systems  pass;  but  the  movement 
is  more  pronounced  in  the  Argentine  than  elsewhere,  because  lack  of 
adequate  financial  resources  of  the  provinces  prevents  the  development 
of  counterbalancing  forces  to  offset  the  extension  of  the  power  of  the 
central  government.  Such  a  check  can  come  only  through  the 
economic  advance  of  the  provinces.  As  they  increase  in  population 
and  wealth,  they  will  be  less  dependent  on  the  federal  government  and 
will  be  able  to  perform  functions  for  which  at  present  they  rely  on  the 
assistance,  and  consequent  control,  of  the  national  government. 

Although  the  provinces  are  making  great  industrial  progress, 
the  growth  of  a  distinctive  and  independent  local  political  life  is 
fraught  with  great  difficulties,  largely  because  during  the  last  fifty 
years  the  national  executive  has  gradually  acquired  a  dominant 
influence  in  the  political  affairs  of  the  provinces.  To  effect  any 
radical  modification  of  this  situation  will  require  far-reaching  changes 
in  the  political  habits  of  the  people.  In  Chapter  VII,  on  Principles 
and  Practice  of  Federal  Intervention,  we  shall  have  occasion  to  ex- 
amine one  of  the  means  employed  to  establish  and  maintain  this 
influence.  During  the  period  of  his  term  of  office  the  president  of 
the  republic  has  been  able  in  the  past  to  bring  most  if  not  all  the 
provinces  into  harmony  with  his  political  views  and  tendencies.  The 
absence  of  an  organized  public  opinion,  the  civic  apathy  of  the  mass  of 
the  population,  and  the  resultant  impossibility  of  organizing  per- 
manent and  well-defined  national  or  local  parties  made  it  possible 
for  the  president  of  the  republic  in  conjunction  with  the  governor 
of  each  province  to  influence  the  selection  of  candidates  for  members 
of  the  national  congress.  As  there  was  rarely  any  well-organized  oppo- 
sition party  a  nomination  was  equivalent  to  an  election.  If  serious 
opposition  did  develop,  the  probabilities  of  success  of  the  party  opposed 
to  the  administration  were  remote.  During  the  last  few  years  a  marked 
change  is  noticeable  by  reason  of  the  awakening  of  public  opinion  and 
the  more  active  participation  by  the  masses  of  the  people  in  public 
affairs.  The  political  power  of  the  President  in  the  provinces,  while 
still  important,  is  no  longer  as  far  reaching  as  it  was  ten  years  ago. 

But,  it  will  be  asked,  how  is  the  president  of  the  republic  able  to 
assure  himself  of  the  cooperation  of  the  governors  of  the  provinces. 
In  its  general  outlines  the  process  is  exceedingly  simple,  but  capable 
of  great  variation  in  application.  The  usual  plan  was  to  give  a  recal- 
citrant governor  the  choice  between  submission  to  the  views  of  the 
administration  and  ejection  from  office.  Article  V  of  the  constitution 
provides: 

"Each  province  shall  adopt  its  own  constitution  which  shall  provide  for 
the  administration  of  justice  in  its  own  territory,  its  municipal  system,  and 


Leading  Characteristics  of  the  Argentine  Political  System  9 

primary  instruction,  such  constitution  to  be  framed  upon  the  republican  rep- 
resentative plan,  in  harmony  with  the  principles,  declarations,  and  guaran- 
ties of  the  national  constitution.  Upon  these  conditions,  the  federal  gov- 
ernment shall  guarantee  to  each  province  the  enjoyment  and  exercise  of  its 
institutions." 

The  broad  interpretation  of  this  article  has  made  it  possible,  on 
any  one  of  a  series  of  pretexts,  to  intervene  in  the  internal  affairs  of 
the  province,  and  on  the  plea  that  the  republican  form  of  government 
has  been  undermined,  to  order  the  holding  of  new  elections.  It  is 
a  matter  of  common  knowledge  that  in  extreme  cases  the  federal 
government  has  encouraged  the  opposition  party  to  foment  a  slight 
local  disturbance.  Such  disturbance,  which  immediately  assumes  the 
dignity  of  a  revolution,  serves  as  a  justification  for  federal  interven- 
tion. The  federal  troops  take  possession  of  the  situation,  a  federal 
commissioner  assumes  the  conduct  of  provincial  affairs,  and  under  his 
direction  a  new  election  for  governor  is  held,  which  invariably  results 
in  the  election  of  the  candidate  whose  views  are  in  harmony  with 
those  of  the  national  government.  The  lessons  of  repeated  experience 
have  taught  the  provincial  governors  that  their  tenure  of  office  is  apt 
to  be  precarious  unless  they  maintain  the  closest  harmony  with  the 
central  government.  It  is  for  this  reason  that  so  many  pass  through 
what  the  Argentines  euphemistically  call  an  "evolution  of  opinion," 
and  thus  place  themselves  in  a  position  of  relative  security. 

During  the  administration  '  of  President  Figueroa  Alcorta  (1906- 
1910)  the  federal  government  intervened  on  four  different  occasions 
in  the  internal  affairs  of  the  provinces,  and  each  time  with  an  ulterior 
political  motive.2 

In  February  1907  the  intervention  in  the  province  of  San  Juan  was 
caused  by  an  uprising  against  Governor  Godoy.  The  federal  com- 
missioner declared  the  governorship  vacant  and  ordered  the  holding 
of  new  elections  for  the  unexpired  term.  As  was  to  be  expected,  the 
political  views  of  the  new  governor  were  in  complete  harmony  with 
those  of  the  president  of  the  republic.  A  few  months  later  a  disturb- 
ance arose  in  the  province  of  San  Luis,  the  main  purpose  of  which  was 
to  prevent  the  newly  elected  governor,  who  had  been  selected  by  the 
president,  from  taking  office.  The  federal  commissioner  who  was 
sent  to  take  charge  of  the  situation  immediately  ordered  the  installa- 
tion of  the  governor-elect. 

In  1908  a  local  revolution  in  the  province  of  Corrientes  led  to 
another  interesting  instance  of  federal  intervention.  The  federal 
commissioner  in  the  case  adopted  a  novel  procedure.  The  conflict 
between  the  legislature  and  the  governor  related  to  the  conditions 

1  In  1904  Manuel  Quintana  was  elected  president  and  Figueroa  Alcorta  vice-president.  In 
1906  Dr.  Quintana  died  and  was  succeeded  by  the  vice-president,  who  remained  in  office 
until  1910. 

J  For  further  details  concerning  these  "interventions"  see  Chapter  VII. 


10  The  Federal  Systeiri  of  the  Argentine  Republic 

under  which  the  elections  for  the  renewal  of  one-third  of  the  mem- 
bers of  the  provincial  legislature  should  be  held.  Through  an  entirely 
extra-constitutional  procedure  the  legislature  proposed  to  the  federal 
commissioner  that  all  the  members  should  resign  and  thus  make  a 
test  of  popular  opinion  through  the  election  of  the  entire  legislature. 
This  procedure  was  agreed  to  by  the  governor.  The  new  elections 
were  held  under  the  auspices  of  the  federal  commissioner,  who  was 
able  indirectly  to  influence  the  elections  and  secure  an  overwhelm- 
ing majority  against  the  governor.  The  newly  elected  legislature 
immediately  proceeded  to  impeach  the  governor  and  removed  him. 
The  legislature  then  appointed  a  provisional  governor  and  ordered 
the  holding  of  new  elections,  which  resulted  in  the  selection  of  a  man 
in  complete  harmony  with  the  views  of  the  president.1 

Through  his  hold  on  the  provincial  governors  and  on  the  local 
political  machinery  the  president  is  usually  in  a  position  to  influence 
the  selection  of  candidates  for  the  senate  and  the  chamber  of  deputies. 
It  is,  therefore,  only  in  exceptional  instances  that  there  is  any  real 
opposition  between  the  federal  executive  and  the  local  authorities. 
When  such  opposition  does  develop,  the  president  is  usually  able  to 
maintain  his  ascendency  because  of  his  hold  on  federal  patronage  and 
through  pressure  on  the  provincial  governors. 

In  exceptional  cases,  resort  is  had  to  extraordinary  measures. 
Thus,  in  the  fall  of  1907  the  president  convened  the  congress  in 
extraordinary  session  for  the  purpose  of  voting  the  budget  for  the 
ensuing  fiscal  year.  In  order  fully  to  understand  the  situation  that 
developed  in  the  course  of  this  extra  session,  it  is  important  to  bear 
in  mind  that  while  congress  is  in  session  the  executive  can  not  inter- 
vene in  the  affairs  of  the  provinces  without  express  authorization. 
In  order  to  prevent  such  intervention  the  congress  determined  to  re- 
main in  session  until  the  opening  of  the  succeeding  regular  session. 
Both  houses,  therefore,  refused  to  vote  the  budget  for  1908,  although 
the  leaders  of  the  opposition  expressed  their  willingness  to  vote,  from 
month  to  month,  the  sums  necessary  to  meet  the  ordinary  expenses 
of  government.  The  situation  was  further  complicated  by  the  presi- 
dential aspirations  of  one  of  the  most  influential  members  of  the 
Argentine  senate,  who  attempted  to  force  administration  support  for 
his  candidacy  by  a  threat  to  continue  the  filibuster  against  the  budget 
until  the  opening  of  the  regular  session. 

The  fiscal  year  opened  with  the  budget  still  pending.  In  view 
of  this  situation,  on  January  25,  1908,  the  president  issued  a  decree 
withdrawing  from  congress  the  measures  submitted  to  it  in  extra 
session  and  declaring  the  session  adjourned  sine  die.  In  order  to 
prevent  the  assembling  of  either  house,  the  police  were  placed  in 

1  In  1909  the  federal  government  intervened  in  the  province  of  Cordoba. 


Leading  Characteristics  of  the  Argentine  Political  System       11 

charge  of  the  congressional  building,  with  strict  orders  not  to  permit 
members  to  enter.  The  action  of  the  president,  although  distinctly 
revolutionary  in  character,  was  supported  by  a  spontaneous  move- 
ment of  opinion  which  rendered  futile  the  attempted  resistance  of  the 
legislative  branch  of  the  government. 

This  incident  serves  to  illustrate  the  dominant  position  occupied 
by  the  executive  in  the  Argentine  system.  In  law,  executive  powers 
are  more  restricted  than  in  the  United  States,  for  under  the  constitu- 
tion the  concept  of  executive  authority  includes  both  the  president 
and  his  ministers,  and  no  act  of  the  former  is  valid  without  the 
counter-signature  of  the  respective  minister.  In  fact,  however,  due 
in  part  to  the  political  traditions  inherited  from  Spain,  but  mainly  to 
the  political  subordination  of  the  provinces  to  executive  policy,  the 
real  power  and  influence  of  the  president  reach  far  beyond  the  formal 
grant  of  powers  in  the  constitution.  A  strong  president  with  a  definite 
program  has  but  little  difficulty  in  securing  support  for  his  policies. 

The  fundamental  weakness  of  the  Argentine  political  system  has 
made  the  lack  of  an  organized  public  opinion.  The  far-reaching  influ- 
ence of  opinion  during  periods  of  extraordinary  excitement  serves  to 
make  more  prominent  the  absence  of  this  indispensable  element  of 
control  in  the  normal  activities  of  government.  Not  until  the  public 
opinion  of  the  country  has  been  organized  will  the  struggles  between 
political  parties  truly  mirror  the  life  of  the  nation.  Progress  towards 
effective  organization  of  public  opinion  is  now  being  rapidly  accom- 
plished. During  recent  years  the  government  and  people  of  the  Argen- 
tine Republic  have  addressed  themselves  resolutely  to  encouraging  the 
participation  of  a  larger  percentage  of  voters  in  local  and  national 
elections.  A  campaign  of  education  has  been  undertaken  which  has 
produced  most  gratifying  results. 

Legislation  designed  to  improve  the  system  of  registration  and 
to  safeguard  the  sacredness  of  the  ballot  was  passed  during  the 
administration  of  President  Roque  Saenz  Pefia.  The  effect  of  this 
legislation  was  to  strengthen  the  confidence  of  the  voter  in  the 
effectiveness  of  his  ballot.  The  gradual  awakening  of  public  opinion 
to  the  importance  of  these  measures  has  placed  the  political  life  of 
the  country  on  a  new  and  distinctly  higher  plane.  Practices  which 
for  many  years  were  tolerated  are  now  so  severely  condemned  that 
they  will  soon  disappear  from  the  political  life  of  the  country. 

It  is  fortunate  for  the  welfare  and  orderly  progress  of  the  Argen- 
tine that  there  is  a  growing  conviction  throughout  the  country  that 
the  question  of  federal  or  consolidated  government  is  relatively 
unimportant  compared  with  the  basic  educational  and  civic  problems 
confronting  the  country.  The  people  are  beginning  to  see  that  the 
question  of  greater  or  less  centralization  is  dependent  upon  economic 
forces  independent  of  individual  will  or  personal  convictions. 


12  The  Federal  System  of  the  Argentine  Republic 

In  addition  to  the  pressing  need  of  encouraging  immigration,  the 
best  thought  and  energy  of  the  nation  and  all  its  available  resources 
must  now  be  directed  toward  the  solution  of  three  fundamental 
problems,  any  one  of  which  is  far  more  important  to  the  country's 
future  than  the  question  of  the  division  of  power  between  the  central 
and  provincial  governments. 

The  first  of  these  is  the  reduction  of  illiteracy  in  the  smaller  towns 
and  rural  districts.  The  registration  of  voters  for  1916  shows  that 
outside  of  Buenos  Aires  in  a  total  of  1,018,542  qualified  voters,  only 
603,062  (59.21  per  cent)  were  able  to  read  and  write.  In  three 
provinces,  Corrientes,  Santiago  del  Estero,  and  Tucuman  a  majority 
of  the  electors  was  illiterate.  In  the  city  of  Buenos  Aires  the  per- 
centage of  illiteracy  was  only  3.98  per  cent.1  The  quick  native  intel- 
ligence of  the  Argentine  "gaucho,"  while  mitigating  the  unfor- 
tunate effects  of  this  neglect,  does  not  diminish  the  grave  injustice 
thus  done  to  the  rising  generation. 

A  second  problem,  far  more  delicate  in  its  nature  and  intimately 
connected  with  the  immigration  problem,  is  the  improvement  in  the 
administration  of  justice.  There  has  been,  it  is  true,  much  unjustified 
criticism  of  the  higher  judiciary  on  the  part  of  foreign  observers. 
With  the  cumbersome  and  in  many  respects  antiquated  procedure  in 
civil  and  especially  in  criminal  cases,  the  wonder  is  that  the  delays 
in  the  administration  of  justice  are  not  longer  and  the  miscarriages 
more  frequent.  The  real  problem  confronting  the  country  is  not 
so  much  a  change  in  the  personnel  of  the  courts  as  a  simplification 
of  the  procedure  and  the  introduction  of  oral  public  trial  instead  of 
the  present  written  procedure,  which  is  secret  in  fact,  if  not  in  law. 
But  far  more  important  than  these  changes  is  the  improvement 
of  the  minor  judiciary,  especially  the  justices  of  the  peace  (juzgados 
de  paz).  Probably  no  other  factor  has  contributed  so  much  toward 
discouraging  immigration. 

To  a  foreign  observer  the  most  puzzling  element  in  the  Argentine 
situation  is  that  the  country  has  but  8,000,000  inhabitants,  whereas 
the  conditions  of  soil,  climate,  and  general  healthfulness  are  superior 
to  most  sections  of  the  United  States.  Although  the  number  of 
immigrants  has  increased  within  recent  years,  a  considerable  propor- 
tion of  this  increase  is  due  to  the  floating  foreign  population,  who  go 
to  the  Argentine  during  the  harvest  and  return  to  their  native  land 
as  soon  as  the  harvest  is  completed.  From  1895  to  1915  the  growth 
of  immigration  was  as  shown  in  table  on  page  13. 

There  has  been  considerable  discussion  as  to  the  causes  of  this 
relatively  slow  increase  of  immigration.  One  peculiar  circumstance 
which  throws  considerable  light  on  the  situation  is  the  fact  that 

1  See  Appendix  D. 


Leading  Characteristics  of  the  Argentine  Political  System        13 


comparatively  few  of  the  foreigners  resident  in  the  Argentine  Republic 
apply  for  naturalization.  This  marked  contrast  with  conditions  pre- 
vailing in  the  United  States  is  due  in  part  to  the  fact  that  no  organ- 
ized campaign  encouraging  naturalization  has  been  undertaken  and  in 
part  to  the  circumstance  that  the  foreigner  feels  that  he  may  have 
recourse  to  the  good  offices  of  the  legation  of  his  country  when  justice 
has  been  denied  him  by  the  justices  of  the  peace.  The  study  of  local 
conditions  in  the  provinces  shows  that  this  defect,  which  has  con- 

Immigration  to  and  emigration  from  the  Argentine  Re-public  1S95-1917. 


Excess  of  immi- 

Year. 

Immigration. 

Emigration 

gration  over 
emigration. 

1895 

80,988 

36,820 

44,168 

1896 

135,205 

45,921 

89,284 

1897 

105,143 

57,457 

47,686 

1898 

95,190 

53,536 

41,654 

1899 

111,083 

62,241 

48,842 

1900 

105,902 

55,417 

50,485 

1901 

125,951 

80,251 

45,700 

1902 

96,080 

79,427 

16,653 

1903 

112,671 

74,776 

37,895 

1904 

161,078 

66,597 

94,481 

1905 

221,622 

82,772 

138,850 

1906 

302,249 

103,852 

198,397 

1907 

257,924 

138,063 

119,861 

1908 

303,112 

85,412 

217,700 

1909 

278,148 

94,644 

183,504 

1910 

338,828 

97,854 

240,974 

1911 

281,622 

120,709 

160,913 

1912 

379,117 

120,260 

258,857 

1913 

364,271 

156,829 

207,442 

1914 

182,659 

178,684 

3,975 

Excess  of  emi- 
gration over 
immigration. 

1915' 

54,144 

118,636 

66,169 

1916 

40,310 

80,867 

40,358 

1917 

23,530 

66,268 

32,931 

1918 

50,662 

59,908 

9,246 

1919(9  mos.) 

43,135 

51,383 

9,248 

1  From  1915  on,  the  Argentine  statistics  do  not  take  into  account 
any  immigration  from  Europe  via  Montevideo. 

tributed  so  much  toward  retarding  the  progress  of  the  country  is  due 
primarily  to  two  causes: 

(1)  The  low  salaries  paid  to  justices  of  the  peace,  a  fact  which 
increases  the  temptation  to  bribery. 

(2)  The  absence  of  traditions  of  judicial  independence.  The 
judiciary  has  failed  to  exercise  an  effective  and  continuous  check  on 
the  executive  and  legislative  branches  of  the  government. 

The  deeply  rooted  conviction  of  the  immigrant  that  there  exists 
a  lack  of  adequate  protection  to  person,  but  especially  to  property, 


14  The  Federal  System  of  the  Argentine  Republic 

has  aroused  a  feeling  of  distrust,  which  discourages  immigration 
and  diminishes  the  incentive  to  naturalization.  Much  could  be 
accomplished  through  the  organization  of  special  associations  for  the 
protection  of  the  immigrant,  with  agencies  in  every  section  of  the 
country.  The  problem  is  a  serious  one,  requiring  the  best  thought 
and  energy  of  both  the  government  and  citizens. 

At  the  present  time  it  would  be  unfortunate  if  any  attempt  were 
made  to  compel  immigrants  to  take  out  naturalization  papers.  It 
has  been  seriously  proposed  by  one  of  the  leading  statesmen  to  make 
the  acquisition  of  Argentine  citizenship  a  condition  prerequisite  to  the 
proprietorship  of  land.  Any  such  plan  is  certain  to  strengthen  the 
feeling  of  distrust  of  the  immigrant  and  thus  discourage  immigra- 
tion ■ —  to-day  one  of  the  country's  greatest  needs.  Argentina  has 
not  yet  reached  a  point  at  which  it  is  advisable  to  place  the  slightest 
obstacle  to  desirable  immigration.  Although  the  national  unity  of 
the  country  suffers  by  reason  of  the  failure  of  foreigners  to  become 
naturalized,  any  marked  diminution  in  the  current  of  immigration 
would  mean  a  far  greater  loss. 

The  discussion  of  the  weaknesses  of  the  Argentine  system  em- 
phasizes the  one  primary,  fundamental  need  already  referred  to,  viz., 
the  development  of  an  organized  public  opinion.  The  absence  of 
this  all-important  factor  explains  most  of  the  shortcomings  in  the 
political  life  of  the  country.  Recent  years  have  witnessed  real 
progress  in  remedying  this  defect.  It  is  no  longer  possible  for  a  few 
men  to  dominate  the  political  life  of  the  country  and  to  play  the 
game  of  politics  as  if  it  were  a  game  of  chess.  The  time  is  rapidly 
passing  when  new  parties  can  be  organized  simply  to  satisfy  the  per- 
sonal ambition  of  a  few  malcontents.  Political  parties  must  now 
have  a  real  program  rather  than  represent  a  mere  personal  following. 

It  is  becoming  increasingly  evident  to  students  of  political  institu- 
tions that  the  existence  of  republican  government  and  democratic 
rule  is  not  so  much  a  question  of  the  selection  of  officials  by  popular 
vote  as  the  control  of  such  officials  and  of  the  entire  public  administra- 
tion by  a  well-organized  public  opinion,  with  definite  standards  and 
with  the  power  to  enforce  such  standards  as  against  the  personal 
interests  of  selfish  politicians.  Until  this  factor  of  control  is  developed 
a  government  republican  in  form  is  certain  to  be  oligarchic  in  fact. 
Such  an  organized  public  opinion  is  rapidly  making  impossible  govern- 
ment by  small  cliques  and  is  creating  an  atmosphere  favorable  to 
the  full  development  of  Argentine  democracy. 


CHAPTER  II. 
THE  FOUNDATIONS  OF  ARGENTINE  DEMOCRACY. 

Peculiarities  in  the  development  of  political  institutions  in  South 
America.  Five  periods  in  Argentine  history:  (1)  The  Colonial  Period 
(prior  to  1810).  (2)  The  Revolutionary  Period  (1810-1816).  (3)  The 
so-called  "Period  of  Anarchy"  (1S16-1829).  (4)  The  Rosas  Tyranny 
(1829-1852).     (5)  The  Period  of  Constitutional  Reorganization  (1852). 

Students  of  political  science  in  the  United  States  have  usually 
taken  for  granted  that  the  methods  of  scientific  investigation  applic- 
able to  the  highly  developed  political  systems  of  England  and  con- 
tinental Europe  are  inapplicable  to  the  republics  of  Latin  America. 
In  fact,  there  seems  to  be  a  widespread  belief  that  the  term  "political 
system"  is  applied  to  Latin  America  by  courtesy,  but  that  a  more 
exact  designation  would  be  "dictatorships  tempered  by  revolution." 
It  is  not  surprising,  therefore,  to  find  that  the  republics  of  Latin- 
America  are  usually  divided  into  two  classes,  the  turbulent  and  the 
peaceable.  The  degree  of  advancement  is  measured  by  the  length  of 
interval  between  revolutionary  movements.  With  this  simple  test 
the  conclusion  is  reached  that  the  great  need  of  the  Latin-American 
republics  is  tranquillity  under  whatever  conditions  or  at  whatever 
price  obtained. 

This  false  approach  to  the  subject  has  been  strengthened  by  the 
use  of  a  number  of  catchwords  and  phrases  by  which  we  attempt  to 
explain  the  political  situation  in  the  countries  of  Central  and  South 
America.  The  contrast  between  "Anglo-Saxon"  and  "Latin"  is  con- 
stantly used  to  designate  the  difference  between  capacity  for  local  self- 
government  and  the  absence  of  this  quality.  We  do  not  stop  to  think 
that  through  the  use  of  these  terms  we  beg  the  real  question  rather 
than  solve  it.  The  qualities  which  we  designate  as  "Latin"  and 
"Anglo-Saxon"  are  the  result  of  well-defined  social  and  economic 
forces  which  students  of  political  science  must  undertake  to  analyze 
and  without  which  our  study  of  Latin- American  institutions  must  ever 
remain  a  play  of  words  rather  than  a  scientific  study. 

The  first  step  in  the  study  of  the  political  institutions  of  Latin 
America  is  a  clear  recognition  of  the  fact  that  each  of  these  countries 
has  developed  its  own  peculiar  economic  and  political  conditions  and 
that  it  is  quite  as  impossible  to  treat  Latin  America,  or  even  South 
America  as  a  whole,  as  it  is  to  attempt  to  explain  the  development 
of  all  the  countries  of  Europe  by  means  of  a  few  simple  principles. 

15 


16  The  Federal  System  of  the  Argentine  Republic 

It  is  furthermore  important  that  we  divest  ourselves  of  the  tend- 
ency to  judge  Latin  America  by  the  standards  which  we  have 
been  accustomed  to  apply  to  our  own  political  growth.  Owing  to 
a  peculiar  grouping  of  the  social  classes  during  the  early  development 
of  the  English  common  law,  the  basis  was  laid  for  the  harmonious 
development  of  order  and  liberty  in  our  political  system,  and  the 
degree  of  stability  of  government  is  therefore  a  fairly  accurate 
measure  of  progress  when  applied  to  our  institutions.  It  is  important 
to  bear  in  mind,  however,  that  the  same  rule  of  interpretation 
can  not  be  applied  to  the  political  development  of  Latin  America. 
Periods  of  political  instability  are  often  indications  of  profound 
social  changes  which  are  preparing  the  way  for  a  higher  type  of 
institutional  growth,  whereas  there  are  numerous  instances  in  which 
political  stability  is  but  the  cloak  for  oligarchical  rule  and  the  social 
degradation  of  large  classes  of  the  population. 

The  history  of  the  Argentine  Republic  illustrates  with  great  clear- 
ness the  principles  above  formulated.  Five  distinct  periods  are  readily 
distinguishable:  (1)  The  colonial  period  (prior  to  1810).  (2)  Therev- 
olutionarv  period  (1810-1816).  (3)  The  so-called  "period  of  anarchy" 
(1816-1829).  (4)  The  Rosas  tyranny  (1829-1852).  (5)  The  period  of 
constitutional  reorganization.  These  periods  represent  the  successive 
steps  in  the  development  of  the  institutional  life  of  the  country. 

The  colonial  period  in  the  Argentine  differs  from  that  of  most 
of  the  other  South  American  republics.  The  Spanish  adventurers 
took  little  interest  in  the  River  Plate  territory,  owing  to  the  failure 
to  find  deposits  of  gold  and  silver,  and  the  same  cause  considerably 
reduced  the  incentive  of  the  Spanish  crown  to  maintain  close  control 
over  this  portion  of  the  colonial  empire.  The  powers  vested  in  the 
viceroy  of  the  River  Plate  and  in  the  "  intendentes "  under  his 
control,  while  far-reaching  in  law,  were  exercised  in  fact  in  the  most 
haphazard  manner.  The  result  was  that  the  towns  were  given  or 
rather  assumed  wide  powers  of  self-government,  not  only  within 
their  respective  municipal  limits,  but  over  districts  so  large  as  to 
become  subsequently  the  basis  for  the  provincial  subdivisions. 

The  immediate  effect  of  this  decentralization  in  fact  was  twofold : 
(1)  to  develop  a  strong  local  spirit,  which  prepared  the  way  for 
separation  from  the  mother  country;  (2)  this  same  sectional  feeling 
which  prepared  the  way  for  the  establishment  of  a  federal  system  and 
which  has  remained  a  constant  and  insuperable  obstacle  to  the  estab- 
lishment of  a  consolidated  centralized  political  system. 

It  must,  furthermore,  be  borne  in  mind  that  the  character  of  the 
colonial  period  in  the  Argentine  Republic  was  largely  determined 
by  the  peculiar  economic  conditions,  which  differed  from  those  of  the 
other  South  American  republics.  During  the  entire  colonial  epoch 
cattle-raising  was  practically  the  exclusive  pursuit  of  the  inhabi- 


Foundations  of  Argentine  Democracy  17 

tants.  It  was  not  the  peaceful  pastoral  pursuit  of  the  countries 
of  continental  Europe.  The  care  of  great  herds  of  wild  cattle 
which,  however,  ranged  over  the  Argentine  pampas  required  a 
type  of  courage  and  self-reliance  wholly  incompatible  with  the  kind 
of  serfdom  which  prevailed  in  other  portions  of  Spain's  colonial 
empire. 

The  concept  of  personal  property  was  only  imperfectly  developed. 
No  attempt  was  made  to  fence  the  great  estates.  At  certain 
seasons  of  the  year  a  great  "round-up"  of  cattle  took  place  and 
the  representatives  of  the  various  ranchmen  attempted  to  identify 
their  property.  During  the  intervals  the  "gaucho"  secured  his  food 
by  killing  such  cattle  as  he  found,  with  but  little  reference  as  to 
whether  the  animals  belonged  to  his  employer  or  not.  It  is  evident 
that  in  a  society  such  as  this  a  real  aristocracy  of  birth  was  impos- 
sible. The  great  landed  proprietors  lived  in  the  towns,  usually  in 
Buenos  Aires.  The  majority  were  European  Spaniards  who  had 
received  large  grants  from  the  home  government  and  who  were  satis- 
fied to  leave  the  management  of  these  estates  to  native  agents,  pro- 
vided they  secured  each  year  a  certain  revenue.  This  "absenteeism" 
prevented  them  from  securing  any  hold  on  the  rural  population. 
In  the  history  of  the  Argentine  Republic  we  find  nothing  to  compare 
with  the  settlement  of  some  of  our  southern  states,  where  agriculture 
was  the  main  pursuit  and  where  the  landed  proprietors  lived  on  their 
estates,  took  an  active  part  in  their  management,  and  exercised  a 
dominant  influence  in  the  local  government  of  the  colonies. 

Slavery  as  an  institution  never  took  deep  root  in  the  rural  sections 
of  the  Argentine  Republic.  It  is  evident  that  the  close  control  which 
slavery  requires  was  impossible  in  a  country  in  which  cattle-raising 
was  practically  the  sole  pursuit  and  was  carried  on  under  the  peculiar 
conditions  prevailing  in  the  River  Plate  provinces.  Not  only  was 
control  impossible,  but  the  nomadic  life  of  the  great  cattle-ranges 
made  the  maintenance  of  slavery  as  an  institution  impossible.1 

In  the  city  of  Buenos  Aires  the  conditions  were  different  from 
those  existing  in  the  rural  districts.  Slavery  maintained  its  vigor 
as  a  social  institution  for  a  far  longer  period  than  in  the  rural  dis- 
tricts. The  use  of  slaves  for  menial  service  and  even  in  a  considerable 
number  of  the  skilled  trades  placed  free  labor  in  a  most  unfavorable 
position.  In  Buenos  Aires  the  antagonism  between  the  European 
Spaniard  and  the  American  Spaniard  was  pronounced,  owing  partly 
to  the  special  privileges  enjoyed  by  the  former  and  the  great  land 
grants  of  which  they  were  the  beneficiaries.  Not  only  were  all  pub- 
lic offices  in  the  hands  of  European  Spaniards,  but  numerous  com- 

1  As  early  as  May  25,  1811,  i.e.,  a  year  after  the  beginning  of  the  revolution,  the  first  step 
toward  emancipation  was  taken.  By  decree  of  May  15,  1812,  the  slave  trade  was  pro- 
hibited. The  constituent  assembly  of  1813  declared  that  all  children  born  of  slave 
parents  should  thereafter  be  deemed  free.     (Law  of  February  2,  1813.) 


18  The  Federal  System  of  the  Argentine  Republic 

mercial  restrictions  and  the  grant  of  special  monopoly  privileges  bore 
heavily  on  the  native  population. 

The  social  and  economic  conditions  above  outlined  distinguish 
the  development  of  the  Argentine  Republic  from  the  other  South 
American  countries.  Although  both  Peru  and  Bolivia  belonged  at  one 
time  to  the  same  viceroyalty  and  were  therefore  subjected  to  the  same 
legal  and  political  system,  their  development  was  essentially  different. 

These  peculiar  economic  and  social  conditions  left  a  deep  impress 
on  the  growth  of  political  ideas.  Throughout  the  River  Plate  prov- 
inces we  find  the  principle  of  authority  seriously  undermined  in 
the  early  years  of  the  colonial  regime.  To  the  cowboy  the  only 
notion  of  a  government  is  that  of  the  leader  who  by  superior  prowess 
and  skill  is  able  to  command  respect  or  inspire  fear.  In  the  country 
districts  personal  leadership,  inspired  and  maintained  by  a  curious 
mixture  of  fear  and  admiration,  was  the  only  form  of  control  to 
which  the  population  would  subject  itself. 

Although  the  country  districts  in  the  later  history  of  the  Argentine 
developed  a  spirit  strongly  refractory  to  all  centralized  authority, 
the  lack  of  local  control  which  characterized  the  Spanish  colonial 
regime  in  the  River  Plate  provinces  made  the  yoke  of  the  mother 
country  rest  lightly  on  the  rural  sections.  It  is  not  surprising,  there- 
fore, that  the  revolutionary  movement  of  1810,  which  marks  the 
beginning  of  the  second  period,  should  have  been  essentially  an 
urban  movement.  It  was  the  protest  of  the  land-owners  residing 
in  the  towns '  and  the  merchants  who  were  being  crushed  by  the 
burden  of  monopoly  and  special  privilege.  The  innumerable  trade 
restrictions  which  Spain  imposed  upon  her  colonial  possessions  were 
keenly  felt  in  Buenos  Aires  and  Montevideo  and  furnished  the  basis 
for  the  agitation  which  finally  found  expression  in  the  assembly  of 
May  22,  1810.  The  movement,  although  supported  by  the  people 
of  the  city  of  Buenos  Aires,  was  not  primarily  democratic  either  in 
its  purposes  or  its  organization.  The  leading  citizens  of  Buenos 
Aires  undertook  to  speak  in  the  name  of  the  people  of  the  viceroyalty 
of  the  River  Plate,  but  a  comparatively  small  proportion  of  the 
population  outside  of  Buenos  Aires  took  any  active  interest  in  the 
movement.  It  is  far  more  accurately  designated  as  a  "liberal" 
rather  than  a  "democratic"  movement.2 

The  real  test  came  with  the  gradual  acceptance  by  the  country 
districts  of  the  liberal  ideas  which  had  determined  the  revolutionary 
movement.  With  emancipation  from  the  mother  country  an  assured 
fact,  these  liberal  ideas  assumed  a  form  quite  different  from  the 
revolutionary  period  (1810-1816). 

1   See   the   famous   Kepresentaci6n   de  los   Hacendados   (Petition   of  the  Landowners)   of   Dr. 

Mariano  Moreno,  one  of  the  leaders  of  the  revolutionary  movement. 
*   The  cabildo  abierto,  which  led  the  movement,  was  composed  of  the  town  council,  to  which 

a  number  of  leading  citizens  were  added. 


Foundations  of  Argentine  Democracy  19 

The  declaration  of  independence,  while  eliminating  the  European 
Spaniard  from  the  management  of  public  affairs,  did  not  materially 
change  the  social  organization  of  the  rural  districts.  Its  main  effect 
was  to  make  clearly  apparent  a  process  which  had  begun  long  before 
the  revolutionary  movement  —  the  growth  of  the  power  of  sectional 
leaders  or  "caudillos,"  as  they  were  termed.  These  "caudillos" 
were  the  most  characteristic  product  of  the  colonial  period.  Although 
the  country  had  much  to  suffer  because  of  their  influence,  it  must 
always  be  borne  in  mind  that  they  represented  the  only  survival  of 
the  principle  of  authority  after  separation  from  the  mother  country. 

The  position  of  the  "caudillo"  has  been  the  subject  of  endless 
unfavorable  comment  by  Argentine  historians  and  sociologists,  and 
his  influence  has  usually  been  regarded  as  a  national  calamity.1  But 
little  attention  is  given  to  the  fact  that  these  leaders,  although  at  a 
later  period  they  became  an  obstacle  to  an  effective  national  organiza- 
tion, contributed  considerably  toward  the  maintenance  of  social 
order  at  the  critical  period  immediately  preceding  and  following  the 
declaration  of  independence.  Although  ruthless  in  their  enmities, 
intolerant  of  opposition,  and  brutal  in  the  repression  of  disorder, 
they  were  for  the  most  part  leaders  who  had  risen  from  the  ranks  of 
the  people  and  were  ever  ready  to  avail  themselves  of  every  move- 
ment of  popular  opinion.  In  a  crude,  imperfect  manner  they  laid  the 
foundations  of  Argentine  democracy. 

It  is  in  the  third  period  (1816-1829)  that  we  begin  to  see  clearly 
outlined  the  development  of  the  federal  idea.  The  rise  of  sectional 
leaders  was  favored  by  the  local  feeling  which  developed  as  a  result 
of  the  large  measure  of  autonomy  which  the  towns  of  the  River  Plate 
provinces  were  permitted  to  exercise  during  the  colonial  regime. 
After  the  declaration  of  independence  this  feeling  took  the  form  of 
violent  opposition  to  subjection  to  any  central  authority,  no  matter 
how  democratic  such  central  authority  might  be.  This  refractoriness 
to  authority  inaugurated  the  so-called  "period  of  anarchy,"  during 
which  the  country  was  divided  into  a  great  number  of  local  juris- 
dictions, republican  in  name  but  tyrannical  in  fact.  The  period 
between  1820  and  1831  is  one  long  record  of  bloody  conflicts  between 
local  leaders,  which  blocked  all  attempts  at  national  organization. 

The  fourth  period  (1829-1852)  is  marked  by  the  conflict  between 
the  centralizing  and  federal  movements  which  first  resulted  in  a  long 
period  of  absolutism  under  Rosas  and  the  final  triumph  of  the  federal 
principle  in  the  constitutional  convention  of  1852.  It  is  impossible 
to  draw  a  definite  line  between  the  third  and  the  fourth  periods, 
inasmuch  as  this  conflict  between  the  centralizing  and  federal  prin- 

1  See  Sarmiento,  Civilization  y  Barbaric.  Buenos  Aires.  1889;  Lucas  Ayarragaray,  La  Anarquia 
Argentina  y  el  Caudillismo.  Buenos  Aires,  1904;  Bartolom6  Mitre,  Historia  del  Belgrano, 
Chaps.  30,  31,  32;  Juan  Agustin  Garcia  (Hijo),  La  Ciudad  Indiana,  Buenos  Aires,  1900. 


20  The  Federal  System  of  the  Argentitie  Republic 

ciples  runs  through  the  entire  third  period,  as  is  attested  by  the 
unsuccessful  attempts  to  put  into  effect  the  constitutions  of  1819 
and  1826. 

The  prolonged  struggle  between  the  advocates  of  a  federal  system 
and  those  who  favored  national  organization  under  the  form  of  a 
unified  centralized  state  can  not  be  understood  if  interpreted  as 
a  mere  difference  of  political  opinion  as  to  the  most  effective  form 
of  government.1  Beneath  this  difference  of  view  there  is  discernible 
the  great  social  conflict  which  was  destined  to  lay  the  foundations 
of  Argentine  democracy. 

The  spirit  of  federalism,  the  origin  of  which  reaches  back  into  the 
colonial  period  at  a  time  when  local  sentiment  was  being  developed 
by  the  town  authorities,  was  sustained  and  developed  by  the  rural 
districts.  The  movement  for  a  centralized  national  government, 
on  the  other  hand,  was  essentially  an  urban  movement  sustained  in 
the  main  by  the  city  of  Buenos  Aires.  Although  at  certain  stages 
of  Argentine  history  it  represented  the  attempt  of  the  province  of 
Buenos  Aires  to  dominate  the  rest  of  the  country,  its  social  significance 
was  far  deeper.  The  propertied  classes,  who  represented  a  kind  of 
incipient  aristocracy  of  wealth,  were  convinced  that  a  strong  central- 
ized government  was  the  only  means  of  assuring  order,  protecting 
property,  and  developing  a  healthy  political  life.  The  conflicts  be- 
tween local  leaders  in  the  provinces  strengthened  this  belief.  The 
large  landed  proprietors,  who  lived  for  the  most  part  in  Buenos 
Aires,  and  who  had  suffered  greatly  from  this  internal  strife,  joined 
hands  with  the  commercial  element  in  supporting  the  movement  for 
a  centralized  national  government.  Inasmuch  as  the  establishment  of 
a  unified  political  system  inevitably  meant  the  predominance  of  the 
province  of  Buenos  Aires,  the  movement  also  found  considerable 
support  in  this  province  among  other  elements  of  the  population. 

On  the  other  hand,  the  mass  of  the  people  in  the  provinces,  under 
the  guidance  of  local  leaders,  supported  the  federal  system  not  because 
of  their  faith  in  this  particular  form  of  government,  but  because 
of  the  widespread  feeling  that  through  the  wider  powers  which  this 
system  would  give  to  the  provincial  governments  the  interests  of  the 
common  people  would  be  more  safely  guarded. 

The  rural  population  was  convinced  that  the  federal  plan  was 
the  only  one  which  would  give  them  an  opportunity  to  participate 
directly  in  the  government.  They  had  constantly  before  them  the 
picture  of  local  loaders  risen  from  the  ranks,  with  whom  they  were 
personally  acquainted,  and  who  were  ever  ready  to  listen  to  their 
complaints.  To  them  a  central  government  in  Buenos  Aires  meant 
the  triumph  of  an  aristocracy  and  presented  the  direst  possibilities 

i  For  the  treatment  of  this  period  of  Argentine  history,  the  author  desires  to  acknowledge  his 
in  I.  htedncss  to  the  admirable  work  of  Dr.  Ernesto  Qucsada,  La  Epoca  de  Rosas,  1898. 


Foundations  of  Argentine  Democracy  21 

of  tyranny  and  oppression.  Viewed  in  this  light,  the  conflict  between 
federalism  and  centralization  assumes  quite  a  different  character. 
It  becomes  a  struggle  between  the  democratic  aspirations  of  the 
mass  of  the  people  of  the  provinces  and  the  conservative  oligarchic 
tendencies  of  the  well-to-do  urban  population.  With  this  distinc- 
tion in  mind,  it  is  less  difficult  to  understand  the  ascendency  and 
almost  absolute  power  exercised  by  Rosas  during  the  period  1829 
to  1852.  His  opposition  to  the  party  which  favored  a  strong  central- 
ized government,  known  as  the  "Unitarios, "  was  interpreted  by  the 
common  people  of  the  provinces  as  an  espousal  of  their  cause  against 
a  movement  which  they  regarded  as  a  first  step  toward  the  establish- 
ment of  a  monarchy. 

Whatever  may  have  been  the  political  ideas  of  Rosas,  he  found 
himself  in  a  position  which  forced  him  to  rely  on  the  common  people 
for  support.  The  wealthy  and  the  cultured  classes  of  Buenos  Aires 
were  not  only  his  sworn  enemies,  but  were  actively  conducting  a  cam- 
paign which,  if  not  checked,  meant  his  downfall.  Soon  after  acquiring 
power  Rosas  inaugurated  a  system  of  ruthless  persecution  of  his  oppo- 
nents which  to  most  of  them  meant  either  death  or  exile.  This 
exercise  of  tyrannical  power  against  his  enemies  has  absorbed  atten- 
tion so  completely  that  the  profound  social  changes  which  took 
place  during  the  Rosas  period  have  been  lost  sight  of.  The  twenty 
years  of  his  ascendency  mark  the  beginnings  of  political  and  social 
self-consciousness  of  the  common  people.  The  contrast  between  the 
proceedings  of  the  constitutional  conventions  of  1826  and  1852  fur- 
nishes the  measure  of  Argentine  social  progress  during  the  quarter 
century. 

With  the  constitutional  convention  of  1852,  the  Argentine  Republic 
entered  upon  the  fifth  stage  of  its  development.  Although  internal 
strife  still  made  impossible  the  final  step  in  national  organization, 
the  great  fundamental  problems  were  solved.  The  struggles  since 
the  declaration  of  independence  had  demonstrated  that  whatever  its 
disadvantages,  the  work  of  national  organization  would  have  to  pro- 
ceed on  the  basis  of  the  federal  principle.  No  matter  how  weak  the 
individual  provinces  might  be,  no  matter  how  great  their  poverty 
and  inability  to  perform  the  function  of  sovereign  units  in  a  federal 
system,  it  was  evident  that  the  people  would  not  accept  any  other 
plan.  In  1819  and  1826  the  constitutional  convention  gave  but  little 
attention  to  the  wishes  of  the  mass  of  the  people  of  the  provinces; 
in  1852  it  was  no  longer  possible  to  ignore  these  demands.  However 
imperfect  the  mechanism  for  the  expression  of  the  popular  will,  there 
is  ample  evidence  that  an  organic  public  opinion  had  begun  to 
develop  and  that  it  was  unalterably  opposed  to  a  highly  centralized 
national  government.  Although  the  settlement  of  this  question  did 
not  assure  national  unity,  the  conflicts  which  followed  the  adoption 


0  2  The  Federal  System  of  the  Argentine  Republic 

of  the  constitution  of  1S53  mark  successive  steps  in  the  political 
integration  of  the  country.  Interpreted  in  this  light  the  war  between 
Buenos  Aires  and  the  provinces  in  1861,  the  numerous  revolutions 
of  1875,  1876,  and  1877,  and  the  second  war  between  Buenos  Aires 
and  the  provinces  in  1SS0  represent  stages  in  a  political  process 
which  has  given  to  the  country  a  political  system  which,  in  spite  of 
its  defects,  is  in  harmony  with  the  political  ideas  of  the  mass  of  the 
people  and  furnishes  the  basis  for  the  development  of  an  institutional 
life  and  vigor  which  will  in  time  make  real  the  ideals  of  the  framers 
of  the  constitution. 


CHAPTER  III. 
THE  BASIS  OF  THE  ARGENTINE  CONSTITUTIONAL  SYSTEM. 

The  cabildo  and  the  town.  The  basis  of  the  constitutional  system.1 
The  Cabildos:  Difference  of  opinion  as  to  part  played  during  colonial 
period;  Wide  powers  exercised:  Assumption  of  power  at  critical 
periods;  Conventions  of  town  delegates.  The  cabildo  of  Buenos  Aires 
in  the  revolution  of  1810.  The  towns  as  the  basis  of  national  organiza- 
tion. The  formation  of  the  provinces  of  the  Argentine  Republic.  The 
conflict  between  the  "consolidated"  and  the  "federal"  principles  in 
national  organization. 

THE  CABILDOS. 

Among  the  historians  of  the  Argentine  Republic  the  widest  differ- 
ence of  opinion  prevails  as  to  the  part  played  by  the  local  govern- 
ments—  the  so-called  "cabildos"  —  during  the  colonial  period  and 
during  the  early  years  of  the  republic.  To  some,  the  cabildo  is 
the  nursery  of  Argentine  liberty,  the  source  of  those  impulses  toward 
freedom  which  kept  alive  the  spirit  of  independence  and  which  finally 
led  to  separation  from  the  mother  country.  To  others  the  cabildo 
of  the  colonial  period  is  the  servile  agent  of  the  viceroy,  perpetuating 
the  tyrannical  power  of  the  local  oligarchies  and  enabling  the  central 
government  to  maintain  its  control  over  local  policy.2 

It  has  been  abundantly  proven  that  the  colonial  cabildos  were 
not  the  democratic  institutions  which  some  enthusiastic  historians 
would  have  us  believe,  but  it  is  equally  true  that  in  spite  of  their 
oligarchical  character  they  enjoyed  the  respect  of  the  people  and 
became  the  natural  heirs  to  authority,  not  only  during  the  troubled 
period  immediately  following  the  revolution,  but  also  during  the 
formative  years  of  the  republic.  In  every  instance  in  which  the 
power  of  the  national  government  was  paralyzed  by  reason  of  internal 
strife,  we  find  the  cabildos  assuming  control.  The  important  part 
they  played  in  the  institutional  development  of  the  nation  is  attested 
by  the  fact  that  it  was  to  a  great  extent  due  to  their  influence  that 
the  sectional  feeling  was  kept  alive  in  the  Argentine  and  led  ultimately 
to  the  adoption  of  the  federal  instead  of  the  consolidated  form  of 
government. 

In  studying  the  system  of  local  government  it  must  always  be 
remembered  that,  owing  to  the  failure  to  find  gold  in  the  region  which 
now  constitutes  the  Argentine  Republic,  neither  the  Spanish  crown 

1  In  the  preparation  of  this  chapter  the  author  desires  to  acknowledge  his  indebtedness  to  the 

valuable  study  of  Francisco  Ramos-Mejia,  El  Federalismo  Argentino. 
5  Cf.  Del  Valle,  Derecho  Constitucional;  Ramos-Mejia,  Federalismo  Argentino. 

23 


24  The  Federal  System  of  the  Argentine  Republic 

nor  its  direct  representative,  the  viceroy,  nor  even  the  district  gov- 
ernors, found  it  necessary  to  exercise  anything  approaching  the  close 
control  which  characterized  Spanish  rule  in  Peru.1  While  reserving 
absolute  legal  power,  the  towns  were,  as  a  matter  of  fact,  permitted 
considerable  freedom  of  action.  This  developed  a  feeling  of  local 
independence  which  manifested  itself  in  the  assumption  of  wide 
political  powers  by  the  town  authorities  during  the  decades  immedi- 
ately following  separation  from  the  mother  country  and  in  the  spirit 
of  territorial  independence  and  separateness  which  finally  blocked  all 
attempts  to  form  a  unified  state.  To  these  peculiar  local  circum- 
stances must  be  added  the  important  fact  that  the  majority  of  the 
Spanish  settlers  in  the  Argentine  Republic  came  from  Navarre,  Aragon, 
and  the  Basque  provinces,  with  the  spirit  of  local  independence  and 
the  adherence  to  local  privileges  strongly  developed. 

It  is  only  necessary  to  read  the  published  archives  of  Buenos 
Aires  and  C6rdoba  in  order  to  understand  the  wide  powers  enjoyed 
by  the  local  governments.2  Nothing  seemed  foreign  to  their  sphere 
of  action.  In  addition  to  the  distinctly  local  services,  they  controlled 
the  police  service,  administered  local  criminal  justice,  and  in  many 
cases  provided  for  the  defense  of  the  surrounding  districts  against 
possible  invasion  by  the  Indians.  In  addition  to  these  functions, 
the  local  authorities  had  the  power  to  convene  what  were  known 
as  cabildos  abiertos,  a  kind  of  town  meeting  to  which  all  the  promi- 
nent citizens  of  the  locality  were  invited.  When  thus  assembled 
the  cabildo  assumed  practically  unlimited  authority,  exercising  the 
widest  political  powers,  often  acting  in  the  name  of  the  entire 
district,  and  in  times  of  crises  in  the  name  of  the  nation  itself.  The 
fact  that  the  towns  were  organized  on  a  plan  similar  to  the  English 
close  corporation,  with  ample  power  to  designate  their  own  members, 
while  tending  to  develop  a  strong  oligarchical  spirit,  also  served  to 
increase  the  spirit  of  local  independence  and  the  aversion  to  anything 
like  outside  interference. 

The  important  part  which  the  towns  were  called  upon  to  play 
during  the  revolutionary  period  was  foreshadowed  in  the  action  of 
the  cabildos  during  the  latter  half  of  the  eighteenth  century.  The 
towns  began  to  look  after  the  larger  interests  of  the  provinces;  con- 
ventions of  representatives  of  the  cabildos  being  called  for  this  purpose. 
One  of  the  most  important  of  these  was  that  of  the  province  of  Salta, 
held  in  1776.  This  convention  dealt  with  questions  of  taxation, 
the  condition  of  the  Indians,  and  various  other  matters  of  common 

1  See  Report  of  the  Viceroy,  Marquis  de  Montesclaros,  made  to  his  successor  in  1615,  Coleccion 

dc  Documentos  Ineditos  del  Archivo  de  Indias,  Vol.  VI,  p.  191.    Also  cited  by  Ramos 

Mejia  in  El  Federalisrao  Argentino,  p.  164. 
'  Up  to  the  present  time  these  are  the  only  archives  published.     The  vast  fund  of  historical 

material  contained  in  the  local  archives  has  aa  yet  been  utilized  to  a  very  limited  extent. 

The  two  collections  above  referred  to  are:   (1)  Acuerdos  del  Cabildo  de  Buenos  Aires; 

(2)  Archivo  Municipal  dc  Cordoba. 


Basis  of  the  Argentine  Constitutional  System  25 

interest.  It  is  significant  that  these  conventions  of  town  delegates 
were  the  prototypes  of  the  subsequent  national  assemblies  of  the 
United  Provinces  of  the  River  Plate. 

The  history  of  the  Argentine  during  the  colonial  period  clearly 
shows  that  the  towns  and  their  representative  authority,  the  cabildo, 
mark  the  first  step  in  the  political  development  of  the  country. 
While  the  provinces,  prior  to  the  declaration  of  independence, 
represented  little  more  than  vast  administrative  districts  with  no 
distinctive  life  of  their  own,  town  institutions  acquired  such  strength 
and  vigor  that  they  were  able  to  tide  over  the  formative  period,  pre- 
serving the  country,  immediately  after  the  destruction  of  the  power 
of  the  Spanish  crown,  from  disintegration  and  anarchy. 

THE  CABILDO  OF  BUENOS  AIRES  IN  THE  REVOLUTION  OF   1810. 

The  circumstances  attending  the  revolution  of  May  1810  clearly 
illustrate  the  important  part  played  by  the  town  governments  in  the 
formative  period  of  the  national  government.  It  is  important  not 
to  lose  sight  of  the  fact  that  the  revolutionary  movement  itself  was 
fomented  by  the  town  authorities,  and  so  far  as  there  was  any  unity 
in  the  movement  it  was  due  to  agreements  between  the  cabildos. 
With  the  destruction  of  the  power  of  the  viceroy  the  purely  artificial 
character  of  the  provincial  subdivisions  became  apparent.  The  town 
governments  were  the  only  political  units  which  had  become  identified 
with  the  life  of  the  people  and  therefore  furnished  the  only  basis  for 
the  new  political  structure  which  the  founders  of  the  republic  were 
called  upon  to  rear. 

The  revolution  which  finally  led  to  the  independence  of  the 
Argentine  was  initiated  by  a  large  assembly  composed  of  the  council 
of  the  city  of  Buenos  Aires,  to  which  the  more  prominent  citizens 
had  been  invited.  The  assembly  thus  called  together,  composed  of 
about  200  members,1  was  known  in  the  Spanish  administrative  system 
as  the  cabildo  abierto.  Legally  it  enjoyed  no  powers  beyond  the 
limits  of  the  local  administrative  district.  At  the  first  session  of  the 
assembly  this  lack  of  authority  to  speak  in  the  name  of  the  nation 
was  pointed  out  by  one  of  the  leaders,  but  to  this  reply  was  made 
that  in  the  absence  of  any  constituted  authority  to  protect  the  inter- 
ests of  the  people,  the  cabildo  was  justified  in  assuming  this  power. 
On  May  22,  1810,  this  assembly  adopted  a  resolution  declaring  that 
the  time  had  arrived  to  provide  a  government  to  take  over  the  powers 
heretofore  exercised  by  the  viceroy  and  that  the  cabildo  would  place 
the  administration  of  the  affairs  of  the  nation  in  the  hands  of  a  board 
until  such  time  as  a  convention  of  delegates  from  all  the  provinces 
should  finally  determine  the  form  of  national  government. 

1  450  invitations  were  sent  out,  but  only  220  answered  the  first  roll-call. 


26  The  Federal  System  of  the  Argentine  Republic 

Instead  of  depriving  the  viceroy  of  all  authority  in  accordance 
with  the  demands  of  the  people  of  Buenos  Aires,  the  assembly  first 
attempted  to  carry  into  effect  a  compromise  measure  which  provided 
that  a  governing  board  of  five  members  be  organized,  of  which  the 
viceroy  should  be  president.  While  still  vested  with  executive 
authority,  his  orders  and  decrees  required  the  countersignature  of 
all  the  other  members.  The  resolution  furthermore  provided  for 
the  complete  separation  of  the  judicial  from  the  executive  authority, 
the  necessity  of  approval  of  all  new  taxes  by  the  cabildo,  the  publicity 
of  accounts,  and  finally  directed  the  board  to  notify  all  the  towns 
within  the  former  territorial  jurisdiction  of  the  viceroy  of  the  River 
Plate  to  hold  open  cabildos  for  the  purpose  of  electing  representatives 
to  a  national  congress  which  should  determine  the  form  of  national 
government. 

Several  distinguished  historians  of  the  Argentine,  notably  Fran- 
cisco Ramos-Mejia,1  have  expressed  deep  disappointment  that  this 
plan  of  organization  was  not  given  a  fair  trial.  In  their  view  the 
form  of  government  thus  established  was  admirably  adapted  to 
tide  over  the  transition  period.  It  stood  in  organic  relation  with  the 
form  of  government  to  which  the  people  had  become  accustomed  and 
therefore  furnished  the  basis  for  the  gradual  development  of  political 
institutions  in  harmony  with  the  customs,  traditions,  and  political 
education  of  the  people.  It  is  interesting  to  note  that  the  constitution 
of  the  United  States  exerted  no  influence  in  this  first  attempt  at 
formulating  a  written  constitution.  The  debates  of  the  assembly 
furnish  no  indication  that  the  American  political  system  in  any  way 
influenced  the  members  of  the  assembly.  In  fact,  the  action  of  the 
Argentine  revolutionary  assembly  furnishes  one  of  the  few  instances 
in  which  a  South  American  republic  attempted  to  organize  a  gov- 
ernment in  harmony  with  local  political  traditions.  The  people  of 
Buenos  Aires  were  determined,  however,  that  every  vestige  of  the 
power  of  the  viceroy  should  be  destroyed,  and  their  opposition  made 
impossible  the  form  of  government  provided  by  the  revolutionary 
board. 

Popular  agitation  rose  to  a  pitch  which  endangered  the  authority 
of  the  assembly  itself,  as  the  people  threatened  to  exercise  directly 
the  supreme  political  authority  and  to  organize  a  national  government, 
thus  destroying  the  assembly's  power.  This  threat  had  the  desired 
effect.  The  resignation  of  the  viceroy  was  hurriedly  demanded  and 
on  May  25  the  cabildo  proceeded  to  organize  a  new  provisional  govern- 
ment. While  preserving  the  idea  of  a  governing  board,  the  original 
plan  was  modified  by  reducing  the  authority  of  the  president  to  that 
of  chairman  of  the  board,  with  no  independent  executive  powers. 

'Ill      i   i  llismO  Argi-ntiuo,  up.  cit.,  p.  230  ff. 


Basis  of  the  Argentine  Constitutional  System  27 


THE  TOWNS  AS  THE  BASIS  OF  NATIONAL  ORGANIZATION. 

The  measures  adopted  by  this  provisional  board  to  secure  a  definite 
organization  of  the  national  government  further  demonstrate  the 
important  part  played  by  the  towns  in  the  political  organization  of 
the  nation.  The  cabildos  were  intrusted  with  the  election  of  repre- 
sentatives to  the  constitutional  convention.  It  is  true  that  they 
were  directed  to  add  to  their  number  the  leading  citizens  within 
their  respective  districts,  but  the  town  formed  the  unit  of  repre- 
sentation. The  delegates  to  the  provisional  assembly  of  the  United 
Provinces  of  the  River  Plate,  which  assembled  on  April  4,  1812,  were 
representatives,  not  of  the  provinces,  but  of  the  towns.  The  dissolu- 
tion of  this  assembly  and  the  convocation  of  another  on  October  6, 
1812,  while  involving  a  change  of  personnel,  did  not  involve  any 
change  in  the  basis  of  representation.  The  usurpation  of  powers  by 
this  assembly  led  to  its  speedy  dissolution.  The  provisional  govern- 
ment, in  making  preparation  for  another  assembly,  determined  to 
depart  from  the  method  of  election  by  the  town  authorities.  This 
determination  was  due  in  large  measure  to  the  dissatisfaction,  es- 
pecially in  Buenos  Aires,  at  the  failure  of  the  first  two  assemblies  to 
fulfill  the  expectations  of  the  people.  The  decree  of  the  provi- 
sional government  of  October  24,  1812,  provided  for  the  election  of 
delegates  to  a  constitutional  convention  to  assemble  in  January  1813. 

The  freemen  of  every  town  were  to  choose  eight  electors,  who, 
together  with  the  members  of  the  town  council,  were  to  constitute 
an  electoral  college  to  designate  the  representatives  to  the  assembly. 
The  system  of  town  representation  was  retained,  Buenos  Aires  re- 
ceiving four  representatives,  the  capitals  of  the  various  provinces 
two  representatives,  and  "each  of  the  towns  tributary  to  such  capital 
cities,  one  representative." 

The  constitutional  convention  which  assembled  in  Tucuman  on 
March  24,  1816,  was  based  on  the  same  principle  of  town  represent- 
ation. Not  only  were  the  towns  made  the  units  of  representation,  but 
they  were  also  required  to  provide  for  the  payment  of  their  delegates. 

The  political  development  of  the  Argentine  Republic  up  to  and 
including  the  congress  of  Tucuman  clearly  shows  that  during  this 
formative  period  the  political  system  rested  on  the  town  organization. 
Not  only  did  the  cabildo  of  Buenos  Aires  assume  the  leadership  in 
the  work  of  national  organization,  but  every  step  in  the  process  shows 
the  important  part  played  by  the  provincial  towns.  Representation 
in  the  constituent  assemblies  was  at  first  a  representation  not  of  the 
towns,  but  of  the  town  councils,  the  "cabildos."  With  the  strengthen- 
ing of  the  democratic  spirit  the  representation  acquired  a  more 
popular  character.  Throughout  all  these  changes  the  towns  remained 
the  primary  units  of  the  national  organization.     As  we  shall  have 


28  The  Federal  System  of  the  Argentine  Republic 

occasion  to  see,  this  spirit  of  communal  independence  proved  to  be 
the  determining  factor  in  the  formation  of  the  provinces  and  in  their 
development  as  political  entities.  It  also  was  at  the  root  of  the 
federal  system.  The  resistance  of  the  towns  to  anything  approach- 
ing a  consolidated  national  government  is  the  real  explanation  of 
the  final  adoption  of  the  federal  principle. 

THE    PROVINCES. 

The  history  of  the  provinces  of  the  Argentine  Republic  is  so 
closely  bound  up  with  the  history  of  the  towns  that  it  is  impossible 
to  separate  them.  In  fact,  the  provinces  as  political  entities  are 
the  logical  outcome  of  the  spirit  of  independence  and  autonomy 
fostered  by  the  towns.  The  royal  ordinance  of  Charles  III  of  1782, 
which  removed  the  provinces  of  the  River  Plate  from  the  jurisdiction 
of  the  viceroy  of  Peru  and  established  the  viceroyalty  of  Buenos  Aires, 
did  not  consolidate  a  homogeneous  territory.  It  is  important  to  bear 
in  mind  the  fact,  already  pointed  out,  that  this  territory  had  been 
settled  by  three  distinct  streams  of  immigration  —  one  from  Chile, 
which  established  its  settlements  in  the  district  of  Cuyo,  another 
from  Peru,  which  settled  the  district  of  Tucuman,  and  a  third  which 
entered  by  way  of  the  River  Plate,  settling  in  Paraguay  and  in  the 
district  of  Buenos  Aires.  Although  speaking  a  common  language 
and  of  essentially  the  same  race,  there  was  little  feeling  of  unity 
between  the  peoples  inhabiting  the  new  viceroyalty.  The  great 
expanse  of  territory  and  the  consequent  impossibility  of  maintain- 
ing close  control  over  the  constituent  districts  made  it  practically 
impossible  for  the  viceroy  to  consolidate  the  territory  and  develop 
unity  of  sentiment  among  the  population.  The  division  of  the 
territory  into  eight  intendencias,1  at  the  head  of  each  of  which  a 
governor  was  placed,  was  the  recognition  in  law  of  the  impossibility 
of  unified  administration.  But  even  if  the  viceroy  of  Buenos  Aires 
had  been  able  to  exercise  adequate  control  over  every  portion  of  the 
territory  under  his  jurisdiction,  it  is  doubtful  whether  he  would  have 
been  able  to  bring  about  political  consolidation. 

With  the  revolution  and  the  repudiation  of  the  viceroy  of  Buenos 
Aires,  the  sectional  tendencies  began  to  manifest  themselves.  The 
towns  proclaimed  themselves  autonomous,  but  recognizing  the  neces- 
sity of  some  common  authority,  especially  for  the  maintenance  of 
their  independence  and  for  purposes  of  defense,  they  were  prepared 

1  These  eight  intendenciat  were  designated  as  follows  (Gonxalei,  Dcrccho  Constitucional,  p.  55): 
(1)  Buenos  Aires,  which  included  the  territory  of  the  present  provinces  of  Buenos  Aires. 
Santa  Fe,  Entre  Rios,  Comentcs,  the  republic  of  Uruguay,  and  the  section  of  Braiil 
known  as  Misiones;  (2)  C6rdoba  del  Tucuman,  including  the  present  provinces  of 
OSrdoba,  Mendoza,  San  Juan,  San  Luis,  and  Rioja;  (3)  Salta,  including  the  present 
provinces  of  Salta.  Jujuy,  Catamarca,  Tucuman,  and  Santiago  del  Estero.  The  others, 
Paraguay.  La  Plata,  Potosi,  La  Par,  and  Puno,  all  included  territory  outside  the  present 
limits  of  the  Argentine  Republic. 


Basis  of  the  Argentine  Constitutional  System  29 

to  maintain  a  central  government,  but  regarded  its  establishment 
as  a  terminable  compact  between  the  territorial  units  which  they 
represented. 

The  formation  of  the  provinces  began  with  the  revolutionary- 
movement.  The  first  step  was  the  action  taken  by  the  national 
assembly  which,  by  resolution  of  November  29,  1813,  divided  the 
intendencia  of  C6rdoba  into  two  parts,  designating  as  the  province 
of  C6rdoba  the  section  which  comprised  the  three  former  provinces 
of  Cuyo.  A  decree  of  the  supreme  director  of  the  confederation, 
dated  March  7,  1814,  created  the  eastern  province  of  the  Rio  de 
la  Plata,  which  later  on  became  the  Republic  of  Uruguay.  A  fur- 
ther decree  of  September  10  of  the  same  year  created  the  provinces 
of  Entre  Rios,  Corrientes,  and  Misiones. 

The  next  step  in  this  process  of  subdivision  was  made  by  the 
executive  decree  of  October  8,  1814,  which  divided  the  former 
intendencia  of  Salta  into  two  parts.  The  southern  section  was 
designated  the  province  of  Tucuman  and  included  the  present 
provinces  of  Tucuman,  Santiago  del  Estero,  and  Catamarca.  The 
northern  section  was  organized  into  the  province  of  Salta  and  in- 
cluded the  present  provinces  of  Salta,  Jujuy,  and  a  portion  of  the 
present  republic  of  Bolivia.  Between  1817  and  1820  the  town 
authorities  (cabildos)  carried  the  process  of  subdivision  still  further 
by  making  provinces  of  the  territory  under  their  jurisdiction.  In 
this  way  the  present  provinces  of  Santa  Fe,  Santiago  del  Estero, 
San  Luis,  San  Juan,  Catamarca,  and  Rioja  were  formed.  In  1834 
Jujuy  was  declared  a  province  by  the  cabildo  of  the  city.1 

In  the  formation  of  the  provinces  the  important  part  played  by 
the  town  authorities  is  worthy  of  note.  Immediately  after  the 
revolution,  the  more  important  towns  assumed  authority  over  a 
large  section  of  surrounding  territory.  The  gradual  recognition  of 
this  authority  led  in  almost  every  instance  to  the  formation  of  a 
new  province,  which  was  given  the  name  of  the  town  whose  efforts 
had  brought  about  its  organization.  We  have  here  further  con- 
firmation of  the  fact  that  the  historical  foundations  of  the  political 
institutions  of  the  Argentine  Republic  are  to  be  found  in  the  activi- 
ties of  the  cabildos  during  the  later  colonial  period  and  during  the 
early  years  of  independence. 

THE  CONFLICT  BETWEEN  CONSOLIDATED  AND  FEDERAL  PRINCIPLES. 

The  early  development  of  political  institutions  in  Argentina  is  of 
peculiar  interest  to  the  student  of  political  science  because  it  illustrates 
so  clearly  the  futility  of  attempting  to  establish  a  form  of  government 
out  of  harmony  with  the  political  ideas  and  traditions  of  the  people. 
It  may  well  be  that  what  the  country  most  needed  during  the  forma- 

1  See  Gonzalez,  Manual  de  la  Constitution  Argentina,  p.  56  ff. 


30  The  Federal  System  of  the  Argentine  Republic 

tive  period  was  a  strong  central  government,  and  it  is  also  probable 
that,  if  the  cooperation  of  the  people  in  the  various  portions  of  the 
republic  could  have  been  secured,  a  strong,  unified  national  govern- 
ment would  have  been  best  adapted  to  carry  out  the  work  of  national 
organization.  The  great  leaders,  such  as  San  Martin  and  Rivadavia, 
were  so  impressed  with  the  necessity  of  a  strong  central  authority 
that  they  failed  to  take  into  consideration  the  powerful  centrifugal 
forces  which  made  such  a  government  impossible.  The  spirit  of 
local  autonomy  which  developed  in  the  towns  during  the  colonial 
period  became  apparent  as  soon  as  the  revolution  of  1810  had 
removed  the  last  obstacles  to  its  free  expression.  As  Ramos-Mejfa 
clearly  shows,1  the  revolution  brought  before  the  country  two  distinct 
problems  —  the  first,  that  of  securing  independence;  the  second,  and 
no  less  important,  that  of  effecting  a  national  organization.  While  the 
cities  of  the  interior  enthusiastically  associated  themselves  with  the 
first  of  these  movements,  they  were  unalterably  opposed  to  any  form  of 
national  organization  which  threatened  their  separate  political  exists 
ence.  No  amount  of  reasoning  could  have  convinced  them  that  the  ter- 
ritories which  they  dominated  and  which  gradually  assumed  the  dignity 
of  provinces  did  not  possess  the  requisites  for  a  vigorous  political  life. 

Whatever  the  defects  of  the  system,  it  is  evident  from  our 
present-day  perspective  that  the  federal  system  was  the  only  form 
of  political  organization  which  could  hope  for  even  a  modicum  of 
success  during  the  formative  period.  The  first  fifty  years  of  the 
existence  of  the  republic  represent  the  struggle  between  federalism 
and  centralization.  During  the  period  between  1810  and  1820  the 
dangers  of  foreign  invasion  enabled  the  province  of  Buenos  Aires  to 
assume  the  leadership  and  to  impose  its  will  on  the  country.  None 
of  the  other  provinces  possessed  the  financial  resources  to  organize  the 
national  defense.  Temporary  cooperation,  however,  did  not  signify  sub- 
mission, as  is  amply  demonstrated  by  the  impossibility  of  making  effec- 
tive the  early  constitutions.  The  anarchical  conditions  which  so  often 
prevailed  between  1810  and  1S20  were  in  reality  the  expression  of  the 
opposition  of  the  provinces,  or  rather  of  the  towns,  to  the  attempts 
of  the  capital  to  effect  the  political  unification  of  the  nation. 

The  attempts  of  the  capital  city  and  of  the  province  of  Buenos 
Aires  to  force  upon  the  country  a  consolidated  national  government, 
which  began  in  1810  and  which  found  final  expression  in  the  con- 
stitutions of  1819  and  1826,  were  at  the  outset  doomed  to  failure, 
as  they  violated  those  deeply  rooted  sectional  tendencies  which  had 
their  origin  in  the  development  of  local  institutions  during  the  co- 
lonial period.  Even  the  recognized  commanding  position  of  Buenos 
Aires  was  inadequate  to  break  the  force  of  these  traditions.  While 
dominating  the  constitutional  convention  of   1819  to  the  extent  of 

•  Federalisnio  Argentino,  p.  338  ff. 


Basis  of  the  Argentine  Constitutional  System  31 

securing  the  adoption  of  a  consolidated  national  government,  the 
system  was  overthrown  almost  as  soon  as  organized.  The  subse- 
quent attempts  to  effect  the  same  purpose  only  served  to  demon- 
strate more  clearly  the  impossibility  of  securing  its  acceptance  and 
finally  resulted  in  the  anarchy  of  civil  war.  The  dictatorship  of 
Rosas  and  the  long  period  of  tyrannical  power  which  he  inaugurated 
are  directly  traceable  to  the  difficulty  of  harmonizing  the  centraliz- 
ing tendencies  of  Buenos  Aires  and  the  spirit  of  local  autonomy 
which  dominated  the  majority  of  the  provinces.  The  bitter  conflict 
which  resulted,  sapped  the  strength  of  the  country  to  such  an  extent 
as  to  prepare  it  for  the  strong  arm  of  the  tyrant. 

It  may  seem  idle  to  speculate  as  to  the  probable  consequences 
of  an  early  recognition  of  the  federal  principle  as  the  basis  of  national 
organization.  It  is  possible  that  the  strong  spirit  of  local  inde- 
pendence would  have  made  it  impossible  to  establish  a  central 
government  sufficiently  strong  to  maintain  internal  order  and  repel 
invasion.  The  history  of  the  country  clearly  shows  that  the  federal 
principle  furnished  the  only  basis  for  national  organization,  however 
weak  such  organization  might  be.  If  the  federal  movement,  as 
expressed  in  the  inter-provincial  agreement  of  February  23,  1820, 
between  the  provinces  of  Buenos  Aires,  Corrientes,  Entre  Rios,  and 
Santa  Fe\  and  the  quadrilateral  agreement  of  January  25,  1822, 
between  the  same  provinces,  both  of  which  clearly  recognized  the 
federal  principle,  had  been  used  as  the  basis  for  the  gradual  organi- 
zation of  the  nation,  it  is  probable  that  the  work  of  completing  the 
political  organization  of  the  nation  would  not  have  required  more 
than  half  a  century. 


CHAPTER   IV. 

ANTECEDENTS  OF  THE  ARGENTINE  CONSTITUTION.1 

The  successive  steps  in  the  development  of  national  sentiment.  The 
provisions,  statutes,  and  regulations  between  1811  and  1816.  Constitu- 
tional convention  of  Tucuman  (1816).  Inter-provincial  agreements 
and  treaties.  The  acuerdo  de  San  Nicolas.  The  rejection  of  the  acuerdo 
by  the  legislative  assembly  of  Buenos  Aires.  The  outbreak  of  the  revo- 
lution of  September  11,  1852. 

The  constitutional  convention  of  1852  is  usually  referred  to  by 
Argentine  commentators  as  marking  the  beginning  of  the  epoch  of 
national  organization.  It  is  important  to  bear  in  mind,  however, 
that  the  form  of  government  adopted  by  that  convention,  although 
profoundly  influenced  by  the  constitution  of  the  United  States,  rep- 
resents a  step  in  the  development  of  the  Argentine  political  system 
which  stands  in  direct  and  organic  relation  with  the  system  which 
it  replaced.  The  successive  steps  in  this  process  are  marked  by  the 
provisional  regulations  of  October  22,  181 1,2  the  provisional  statute 
of  November  22,  181 1,3  the  statute  for  the  security  of  the  individual 
of  November  23,  181 1,4  and  the  regulations  for  the  administration 
of  justice  of  January  23,  1812.5  The  mere  enumeration  of  these 
instruments  is  sufficient  to  demonstrate  that  they  represent  distinct 
stages  in  the  development  of  national  sentiment  which  came  to  full 
fruition  in  the  constitution  of  1853  and  the  amendments  of  1860, 
1880,  and  1898.  The  first  general  constituent  assembly  of  the  United 
Provinces  of  the  River  Plate,  which  met  in  Buenos  Aires  on  January 
31, 1813,  adopted  a  series  of  fundamental  laws  which,  considered  jointly, 
constitute  a  well-defined  constitutional  system.  These  organic  laws 
are  as  follows: 

1.  The  statute  of  February  27,  1813,  organizing  a  national  executive 

authority  designated  as  the  supreme  director. 

2.  The  statute  of  February  26,    1814,  modifying  and  enlarging  the 

powers  of  the  national  executive. 

3.  The   regulations  for   the   administration   of   justice    (reglamento 

de  la  administracion  de  justicia)  of  September  6,  1813. 

In  addition  to  its  powers  as  a  constitutional  convention,  this 
assembly  assumed  legislative  powers  and  adopted  a  number  of  im- 
portant laws,  among  which  should  be  mentioned  the  abolition  of 

i  For  the  data  contained  in  this  chapter  the  author  is  indebted  to  the  valuable  work  of 
Joaquin  V.  Gonzalez,  "Manual  de  la  Constitucion  Argentina"  and  of  Aristobulo  del 
Valle,   "Noeiones  de  Derecho  Constitutional." 

■  Reglamento  Provisorio  de  22  de  Octubre,   1811. 

■  Estatuto  Provisional  de  22  Noviembre,   1811. 

•  Estatuto  de  Seguridad  Individual  del  23  de  Noviembre,   1811. 
>  Reglamento  de  Institucion  y  Administracion  de  Justicia  de  23  de  Enero,   1812. 

33 


34  The  Federal  System  of  the  Argentine  Republic 

slavery  (February  2,  February  4,  and  March  12,  1813),  the  abolition 
of  torture  in  criminal  prosecutions  (May  21,  1813),  the  abolition  of 
the  tribunal  of  the  inquisition  (March  24,  1813),  the  abolition  of 
monopolies  and  restrictions  upon  foreign  and  domestic  trade.1 

The  second  constituent  assembly  convened  in  Tueuman  in  1816 
and,  after  issuing  a  formal  declaration  of  independence,  transferred 
its  labors  to  the  city  of  Buenos  Aires  and  there  adopted  a  provisional 
statute  -  for  the  administration  of  the  affairs  of  the  nation,  which 
was  to  continue  in  force  until  the  formulation  and  adoption  of  a 
permanent  constitution.  This  statute  provided  for  a  national  execu- 
tive to  be  known  as  the  director  of  state  (director  del  estado),  elected 
by  the  congress.  It  was  further  provided  that  the  governors  of 
provinces  be  appointed  by  the  national  executive  from  lists  sub- 
mitted by  the  town  authorities  of  the  respective  provinces.  In  this 
fundamental  law  we  find  incorporated  many  of  the  constitutional 
guarantees  which  are  contained  in  the  constitution  of  1S53.3 

The  constitution  adopted  by  the  constituent  assembly  of  1817 
and  finally  promulgated  on  April  22,  1819,4  although  in  operation 
but  a  few  months,  presents  considerable  historical  interest,  because 
it  expresses  so  clearly  the  conflict  between  the  federal  and  the  con- 
solidated principles  of  national  organization,  which  have  played  a 
leading  part  in  Argentine  history.  In  this  convention  of  1817  the 
consolidated  principle  triumphed,  but  the  influence  of  local  leaders 
was  sufficient  to  thwart  the  efforts  to  put  it  into  operation.  The 
national  congress,  intimidated  by  local  leaders,  especially  by  the 
famous  Artigas,  adjourned,  placing  the  direction  of  national  affairs  in 
the  hands  of  the  town  authorities  (cabildo)  of  Buenos  Aires.  With 
the  dissolution  of  this  congress  the  country  enters  upon  a  prolonged 
period  of  civil  war. 

Complete  anarchy  was  avoided  only  through  a  series  of  agree- 
ments between  the  governors  of  several  of  the  provinces.  The  most 
notable  of  these  was  the  treaty  of  Pilar  between  the  governors  of 
Entre  Rios,  Santa  Fe,  and  Buenos  Aires,  signed  February  23, 1820,  pro- 
viding for  a  loose  form  of  federation.5  This  was  followed  by  the  famous 
quadrilateral  treaty  of  Janaury  25,  1822,6  between  the  governments 
of  Buenos  Aires,  Corrientes,  Entre  Rios,  and  Santa  F6,  which  was 
designed  to  secure  freedom  of  commerce  and  navigation  between 
these  provinces  and  to  secure  the  benefits  of  domestic  peace. 

The  necessities  of  national  defense,  especially  the  danger  of  invasion 
by  Brazil,  gradually  brought  the  provinces  closer  together.     During 

1  See  Trabajos  de  las  primcras  asamblens  Argentines  desdc  la  Junta  de  1M  1  basta  la  disolucion 
del  Congreao  en  1822,  \Y,1.  I,  1811   1820. 

*  Reglami  lit"  ]'r>.  iaorio  i>ara  la  direction  y  administration  del  Estado  del  3  de  Deciembre,  1817. 
'  Regurtro  National,  1817,  V..1.  1,  pp.  141-154. 

.  1819,  V,,l.  I,  pp.  602-608. 

*  Vicente  Fidel  Lopes,  llistoria  Argentina,  Vol.  XIII,  Chap,  II,  p.  143 if. 

*  Regiatro  National,  lhL'j,  Vol.  II,  p.  4. 


Antecedents  of  the  Argentine  Constitution  35 

the  year  1820  a  board  of  representatives  of  the  provinces,  known 
as  the  Junta  de  Representantes,  was  organized.  Although  wielding 
comparatively  little  influence,  it  was  nevertheless  the  outward  ex- 
pression, during  the  years  of  anarchy  immediately  following  1819, 
of  the  social  and  racial,  if  not  of  the  political,  unity  of  the  provinces 
of  the  River  Plate.1  In  1824  2  this  junta  passed  a  law  authorizing  the 
calling  of  a  new  constitutional  convention.  On  December  6  of  the 
same  year  delegates  of  Buenos  Aires,  Santa  F£,  San  Luis,  Entre 
Rios,  C6rdoba,  Tucuman,  Salta,  Mendoza,  Santiago  del  Estero, 
Corrientes,  Jujuy,  and  Misiones  met  in  Buenos  Aires  for  a  preliminary 
conference  and  on  December  22  the  convention  was  formally  installed. 
The  constitution  adopted  by  this  convention  (December  24,  1826) 
was  based  on  the  constitution  of  1819,  with  some  modifications  in  the 
organization  and  method  of  election  of  the  executive  and  legislative 
authorities,  and  provided  for  a  consolidated  system  of  government, 
the  provinces  being  reduced  to  mere  administrative  subdivisions.3  In 
addition  to  adopting  the  constitution  the  convention  nationalized  the 
city  of  Buenos  Aires,  declaring  it  the  federal  capital. 

The  submission  of  this  constitution  to  the  provinces  was  the  signal 
for  a  general  movement  of  local  leaders  against  its  acceptance.  To 
these  local  leaders  of  the  provinces  a  consolidated  political  system 
meant  the  supremacy  of  the  province  of  Buenos  Aires  and  their 
consequent  subordination.  This  they  were  determined  to  combat 
at  whatever  cost.  The  settlement  of  the  conflict  with  Brazil  through 
the  establishment  of  the  independence  of  Uruguay  removed  the  last 
obstacle  to  the  violent  assertion  of  this  opposition. 

The  anarchical  conditions  which  accompanied  the  struggle 
between  consolidationists  and  federalists  finally  led  to  the  dictator- 
ship of  Juan  Manuel  Rosas,  who,  although  ostensibly  representing 
the  federalist  cause,  succeeded  in  establishing  a  form  of  absolutism 

1  It  is  a  notable  fact  that  these  inter-provincial  treaties  played  a  most  important  part  in  the 
process  of  national  organization.    Amongst  the  most  important  of  these  we  may  mention: 

1.  Treaty  of  peace  and  commerce  of  August  7,  1829,  between  Cordoba  and  Santa  Fe. 

2.  Treaty  of  peace,  friendship,  and  alliance  of  October  19,   1829,  between  Buenos 

Aires  and  Santa  Fe. 
3    Treaty  of  peace,  friendship,  and  alliance  of  October  27,  1829,  between  Buenos 
Aires  and  Cordoba. 

4.  Treaty  of  peace  and  friendship  of  April  16,  1830,  between  San  Juan  and  C6rdoba. 

5.  Treaty  of  peace,  friendship,  and  offensive  and  defensive  alliance  of  July  5,  1830, 

between  C6rdoba,  Mendoza,  San  Luis,  and  Rioja. 

6.  Treaty  of  union  and  alliance  of  August  31,  1830,  between  C6rdoba,  Mendoza,  San 

Luis,  Rioja,  San  Juan,  Catamarca,  Santiago,  Salta,  and  Tucuman. 

7.  Treaty  of  January  4,   1831,   between  Buenos  Aires,  Santa  Fe,  and  Entre  Rios, 

which  furnished  the  basis  for  the  agreement  of  San  Nicolas  (Registro  Nacional, 
Vol.  II,  p.  279). 

8.  Agreement  of  San  Nicolas  of  May  31,  1852,  upon  which  the  constitution  of  1853 

rests  (Registro  Nacional,  Vol.  Ill,  pp.  13-16). 

9.  Treaty  of  peace  between  Buenos  Aires  and  the  confederation  of  November  11, 

1859,  and  under  which  Buenos  Aires  was  brought  into  the  union. 

«  Law,  February  27,  1824. 

»  Registro  Nacional,  Vol.  II,  pp.  1926,  1939,  1940,  1947,  2083,  2098,  2103. 


36  The  Federal  System  of  the  Argentine  Republic 

which  continued  until  1852.  In  1829  he  was  elected  governor  and 
captain-general  of  the  province  of  Buenos  Aires,  and  at  the  same  time 
intrusted  with  the  conduct  of  the  foreign  relations  of  the  River  Plate 
provinces.  In  1835  his  power  was  further  increased  by  a  plebiscite 
which  placed  supreme  political  power  in  his  hands.1 

This  period  of  more  than  twenty  years  (1829-1852)  in  the  history 
of  the  Argentine  Republic  is  usually  ignored  by  the  historians  of  the 
country's  constitutional  development  on  the  ground  that  a  period 
of  dictatorship  has  nothing  to  do  with  the  orderly  development  of 
free  institutions,  and  that  it  is,  therefore,  to  be  regarded  as  abnor- 
mal and  "outlawed."  So  distinguished  a  publicist  as  Del  Valle 2 
expresses  the  prevailing  opinion  amongst  Argentine  constitutional 
lawyers  when  he  says: 

"The  bloody  dictatorship  of  Rosas  teaches  an  important  lesson,  but  it 
furnishes  no  material  for  our  study.  Despotism  is  not  a  political  institu- 
tion, but  rather  the  suppression  of  all  rules  and  principles  of  social  govern- 
ment. We  must,  therefore,  pass  over  this  sad  period  and  renew  our  studies 
with  the  first  attempts  at  national  re-organization  which  began  at  the  close 
of  this  epoch." 

It  is  only  within  the  last  few  years  that  a  broader  view  of  this 
important  period  is  making  itself  felt.  Whatever  the  verdict  as 
to  the  means  employed  by  Rosas  to  carry  out  his  plans,  it  is  evident 
that  his  twenty-three  years  of  unquestioned  authority  not  only  left 
a  deep  impress  on  the  institutions  of  the  country,  but,  in  a  sense, 
prepared  the  way  for  the  national  reorganization  of  1853.3  Federal 
institutions  in  the  Argentine  were  incapable  of  vigorous  growth  so 
long  as  the  tyranny  of  petty  provincial  leaders  continued.  One  of 
the  first  effects  of  the  dominant  power  of  Rosas  was  to  curb  the  power 
of  these  local  tyrants,  whose  arbitrary  measures  were  an  insuperable 
obstacle  to  the  development  of  anything  approaching  local  self- 
government  in  the  provinces.  In  spite  of  his  brutal  and  almost 
savage  policy  in  repressing  all  opposition,  the  government  of  Rosas 
marks  a  step  in  the  process  of  national  organization,  the  full  effects 
of  which  can  be  seen  when  we  compare  the  so-called  federalism  of 
1829  with  the  federalism  of  1853.  The  former  was  but  a  cloak  for 
anarchy;  the  latter  gives  evidence  of  the  organic  unity  without 
which  a  federal  system  is  impossible.  Another  fact  which  deserves 
consideration  in  estimating  the  influence  of  Rosas  is  the  orderly 
methods  which  he  introduced  into  the  public  administration.  It  was 
well  known  that  he  would  not  tolerate  inefficiency  in  the  conduct  of 

'  Technically  designated  as  "La  suma  del  Poder  Publico."  Article  XXIX,  constitution,  1853, 
specifically  prohibit)  the  granting  of  supreme  political  power  to  tho  executive  or  legisla- 
itlioritiis  of  the  nation  or  of  the  provinces. 

»  Derecho  ( lonatatucional,  p.  475.  See  also  Alberdi,  Organizacion  dc  la  Coufederacion  Argentina, 
edition  1856,  p.  1. 

'  Sec  the  important  volume  of  Ernesto  Quesada,  La  Epoca  de  Rosas,  Buenos  Aires,  1898;  also, 
Adolfo  .-; : >  1  ■  1  i : i ^ ,  Historia  de  la  ConfcderacioD  Argentina,  2d  cd.,  5  volumes. 


Antecedents  of  the  Argentine  Constitution  37 

public  business  and  punished  with  almost  brutal  severity  the  slightest 
laxity  in  public  accounts. 

But  by  far  the  most  important  achievement  of  this  period  was 
its  influence  on  the  social  organization  of  the  country.1  Although 
the  first  steps  in  the  separation  from  the  mother  country  were  sup- 
ported by  a  popular  movement,  the  period  immediately  following  the 
declaration  of  independence  showed  distinct  signs  of  the  aristocratic 
trend  which  the  movement  soon  assumed.  In  each  of  the  provinces 
an  oligarchy  was  gradually  establishing  itself  which,  if  permitted  to 
develop,  would  smother  any  attempt  toward  the  development  of  a 
real  democracy.  Although  the  Rosas  government  was  anything  but 
a  free  government,  its  effect  upon  the  Argentine  social  organization 
was  to  prepare  the  way  for  a  real  democratic  movement.  Although 
his  government  was  a  reign  of  terror,  it  was  directed  in  the  main 
against  the  relatively  small  groups  whose  main  purpose  was  to 
monopolize  the  political  life  of  Buenos  Aires  and  the  provinces. 
When  Rosas  was  compelled  to  relinquish  the  government  after  the 
battle  of  Caseros,  the  spirit  of  special  political  privilege  which  had 
characterized  the  first  decades  of  independence  had  given  way  to 
a  spirit  of  equality  amongst  the  common  people,  which  gave  the 
nation  a  reserve  civic  force  which  it  had  never  before  enjoyed. 
As  Quesada 2  clearly  points  out,  Argentina  passed  through  a  social 
revolution  during  the  government  of  Rosas,  the  result  of  which  was  to 
place  the  country  on  the  road  toward  a  real  democratic  development. 

The  downfall  of  Rosas  in  1852  and  the  assembling  of  a  new 
constitutional  convention,  while  marking  therefore  an  epoch  in  the 
history  of  the  country,  stand  in  close  and  organic  relation  with  the 
long  period  of  tyranny  which  preceded. 

General  Urquiza,  who  led  the  allied  forces  against  Rosas,  was 
anxious  to  hold  a  convention  with  the  least  possible  delay  for  the 
purpose  of  framing  a  new  constitution.  He  realized  that  the  position 
of  the  province  of  Buenos  Aires  in  the  federation  presented  many 
and  serious  difficulties  and  he  was  determined  to  have  the  funda- 
mental problems  settled  before  the  opposition  had  opportunity  to 
become  thoroughly  organized.  Although  General  Urquiza  was  com- 
plete master  of  the  situation  during  the  period  immediately  follow- 
ing the  battle  of  Caseros,  he  did  not  make  full  use  of  this  power 
until  the  province  of  Buenos  Aires  began  to  show  hostility  to  his 
plans.  One  of  his  first  acts  was  to  appoint  Dr.  Vicente  Lopez  pro- 
visional governor  of  Buenos  Aires  and  to  intrust  the  government  of 
the  province  with  the  conduct  of  the  foreign  relations  of  the  nation. 
In  the  formation  of  his  cabinet  Dr.  Lopez  appointed  Dr.  Valentino 
Alsina  minister  of  government.     General  Urquiza  was  well  aware 

i  Ernesto  Quesada,  La  Epoca  de  Rosas,  Buenos  Aires,  1898. 
s  Epoca  de  Rosas,  p.  346  et  seq. 


38  The  Federal  System  of  the  Argentine  Republic 

that  Alsina  was  unalterably  opposed  to  his  policy,  and  this  fact  led 
him  to  take  the  first  step  toward  assuming  part  of  the.  power  which 
he  had  delegated.  On  April  5,  1852,  the  governors  of  Buenos  Aires, 
Corrientes,  and  Santa  Fe  met  with  General  Urquiza  on  the  outskirts 
of  the  city  of  Buenos  Aires  1  and  adopted  a  series  of  resolutions  which 
accomplished  two  important  purposes.  The  first  was  the  adoption 
of  a  protocol  which  made  the  interprovincial  treaty  of  1831,  known 
as  the  "Pacta  de  la  Liga  Litoral,"  the  basis  upon  which  the  reorgani- 
zation of  the  national  government  should  be  effected.  The  second 
was  to  take  the  conduct  of  foreign  affairs  from  the  government  of 
Buenos  Aires  and  place  it  in  the  hands  of  General  Urquiza.  On 
the  following  day,  April  6,  1852,  General  Urquiza  made  use  of  this 
power  by  appointing  the  former  minister  of  foreign  affairs  special 
envoy  to  Brazil  and  making  the  then  minister  of  public  instruction 
of  the  province  of  Buenos  Aires,  Dr.  Vicente  Fidel  Lopez,  his  pro- 
visional minister  of  foreign  affairs. 

Two  days  later,  April  8,  1852,  the  invitation  was  sent  to  the 
several  governors  of  the  provinces  to  meet  in  San  Nicolas  de  los 
Arroyos  to  hold  a  preliminary  conference  not  later  than  May  20, 
as  General  Urquiza  was  anxious  to  have  the  formal  conference  open 
on  May  25,  the  anniversary  of  the  beginning  of  the  movement  for 
national  independence.  This  conference  was  expected  to  take  the  pre- 
Uminary  steps  toward  the  framing  of  a  national  constitution.  It  is  a 
matter  worthy  of  note  that  with  the  exception  of  the  governor  of 
Buenos  Aires,  who  was  elected  at  a  special  election  ordered  by  Gen- 
eral Urquiza,  all  the  provincial  governors  to  whom  invitations  were 
sent  had  supported  the  dictatorship  of  Rosas  and  were  in  fact  his 
appointees. 

At  the  conference  of  San  Nicolas,  General  Urquiza  represented 
the  provinces  of  Entre  Rios  and  Catamarca.  The  provinces  of 
Corrientes,  San  Luis,  San  Juan,  Tucuman,  Mendoza,  Santiago  del 
Estero,  Rioja,  Santa  Fe,  and  Buenos  Aires  were  represented  by  their 
respective  governors.  But  three  provinces  failed  to  appear  —  Salta, 
Jujuy,  and  C6rdoba.  These  three  provinces  ratified  the  agreement 
July  1 ,  1S52.  Within  less  than  ten  days  after  assembling,  the  governors 
of  the  provinces  represented  agreed  upon  certain  fundamental  prin- 
ciples for  the  constitutional  reorganization  of  the  country.2 

This  instrument  consists  of  nineteen  articles,  which  ma}'  be  sum- 
marized as  follows: 

1.  The  pact  of  January  4,  1831,  is  recognized  as  the  basis  for  con- 
stitutional reorganization. 

2.  Domestic  order  having  been  reestablished  the  time  has  arrived 
to  fulfill  the  provisions  of  Article  XVI  of  said  pact,  viz.,  to  call  a  con- 
stitutional convention  to  organize  a  federal  system  of  government. 

1  Palermo.     Now  incorporated  into  the  city  limits. 

'  Known  as  the  Acuerdo  de  San  Nicolas.    See  Rcgistro  Nacional,  Vol.  II,  p.  279. 


Antecedents  of  the  Argentine  Constitution  39 

3.  All  imposts  or  duties  on  interprovincial  commerce  are  abolished. 

4.  The  constitutional  convention  to  convene  in  August  1852;  the 
delegates  being  elected  in  the  same  manner  as  members  of  the  pro- 
vincial legislatures. 

5.  Each  province  is  entitled  to  two  delegates. 

6.  A  majority  vote  is  sufficient  for  the  adoption  of  the  constitution. 

7.  The  governors  of  the  respective  provinces  bind  themselves  to  use 
every  lawful  influence  to  secure  the  election  of  men  imbued  with  national 
sentiment,  patriotism,  and  probity. 

8.  Establishes  the  immunity  of  delegates,  but  gives  to  each  province 
the  right  to  withdraw  its  delegates;  requiring,  however,  the  immediate 
appointment  of  their  substitutes. 

9.  Provides  for  the  method  of  paying  the  per  diem  of  delegates. 

10.  Provides  for  the  method  of  paying  the  other  expenses  of  the 
convention. 

11.  Santa  F6  is  designated  as  the  meeting  place  of  the  convention. 

12.  The  constitution  once  adopted  is  to  be  sent  to  the  provisional 
executive,  who  shall  proclaim  the  same,  together  with  such  organic 
laws  as  may  be  necessary  for  its  execution.  The  convention  shall  then 
elect  the  first  constitutional  president  of  the  republic  and  adjourn. 

13.  Pending  the  adoption  of  the  new  constitution  the  provincial 
governors  shall  give  special  attention  to  the  maintenance  of  order  in 
their  respective  provinces. 

14.  In  case  of  domestic  violence  the  minister  of  foreign  affairs  l  is 
empowered  to  take  such  measures  as  he  may  deem  necessary  to  restore 
order. 

15.  That,  pending  the  adoption  of  the  new  constitution,  the  land 
and  naval  forces  of  the  provinces  be  placed  at  the  disposal  of  General 
Urquiza,  who,  during  this  period,  is  to  represent  the  national  sovereignty 
and  act  as  director  of  foreign  affairs. 

16.  That  said  director  of  foreign  affairs  be  empowered  to  regulate 
the  navigation  of  rivers,  the  establishment  of  post-offices,  and  the 
improvement  of  highways. 

17.  That  the  provisional  executive  be  empowered  to  form  a  council 
of  state  to  assist  him  in  the  management  of  public  affairs. 

18.  That  the  said  director  of  foreign  relations  receive  the  title  "  pro- 
visional director  of  the  Argentine  Confederation." 

19.  That  until  the  establishment  of  a  system  of  national  duties,  im- 
posts and  excises  the  respective  provinces  contribute  to  the  national 
treasury  in  proportion  to  the  income  from  the  foreign  customs  dues 
which  they  have  established. 

As  soon  as  the  terms  of  the  agreement  became  known  the  hostile 
movement  in  the  province  of  Buenos  Aires  began  to  take  definite 
shape.  The  articles  which  aroused  the  greatest  opposition  were 
those  giving  to  the  provisional  director '  of  the  confederation  the 
power  to  dispose  of  the  land  and  naval  forces  and  to  suppress  domestic 
violence  in  any  of  the  provinces.  The  cry  was  raised  that  the  way 
was  being  prepared  for  a  new  dictatorship.  Although  the  contents 
of  the  famous  agreement  were  known  to  the  members  of  the  pro- 
vincial legislature  of  Buenos  Aires,  the  instrument  was  not  officially 

1  Technically  known  as  the  "Encargado  de  lasRelaciones  Exteriorea,"  who  was  in  reality  the 
provisional  executive.    General  Urquiza  occupied  this  position. 


40  The  Federal  System  of  the  Argentine  Republic 

submitted  for  their  consideration  until  June  14  (1852).  On  the  21st 
the  memorable  debate  1  took  place  which  resulted  in  the  rejection 
of  the  agreement  and  marks  the  beginning  of  a  new  revolutionary 
movement  which  resulted  in  the  separation  of  Buenos  Aires  from 
the  confederation.  The  following  day,  Dr.  Lopez,  the  governor  of 
Buenos  Aires,  presented  his  resignation,  which  was  accepted.  The 
president  of  the  legislative  assembly  was  immediately  intrusted 
with  the  executive  direction  of  the  affairs  of  the  province. 

As  soon  as  General  Urquiza  was  informed  of  these  proceedings 
he  sent  a  communication  to  the  acting  governor  informing  him  that 
he  regarded  the  proceedings  of  the  assembly  as  anarchical  and  sub- 
versive of  order  and  that  in  view  of  these  circumstances  he  had 
decided  to  dissolve  the  assembly  and  to  assume  temporarily  the 
government  of  the  province.  Deeming  it  necessary  to  assist  in  the 
preparations  for  the  national  constitutional  convention  which  was 
soon  to  meet  in  Santa  Fe,  he  delegated  the  power  thus  assumed  to 
General  Galan.2  The  departure  of  General  Urquiza  for  Santa  Fe 
was  the  signal  for  the  beginning  of  a  series  of  conspiracies  which 
finally  took  shape  in  the  revolution  of  September  11,  1852.  After 
a  brief  struggle  with  the  forces  of  the  confederation,  the  conflict 
resulted  in  the  establishment  of  Buenos  Aires  as  an  independent  state, 
which  adopted  a  new  constitution  in  1854. 

»  In  this  classic  debate  the  most  notable  speeches  were  delivered  by  Colonel  (afterwards  Presi- 
dent) Mitre,  Dr.  Velez,  and  Dr.  Vicente  Fidel  Lopei. 
*  Decree  of  September  11,  1852. 


CHAPTER  V. 

CONSTITUTION  OF  1853  AND  AMENDMENTS  OF  1860,  1866,  AND  1898. 

Situation  created  by  refusal  of  Buenos  Aires  to  take  part  in  the 
national  constitutional  convention.  Conflict  between  Buenos  Aires  and 
the  other  provinces.  Difficulties  of  the  situation.  Clearly  defined  work 
of  the  convention.  Alberdi  draft  submitted  to  the  committee  on 
constitutional  affairs.  Report  of  the  "committee  on  constitutional 
affairs."  Signing  of  the  constitution.  Rejection  by  the  province  of 
Buenos  Aires.  Struggle  between  Buenos  Aires  and  the  confederation. 
Treaty  of  November  11,  1859,  and  pact  of  union  of  June  6,  1860. 
Constitutional  convention  of  the  province  of  Buenos  Aires  of  1860. 
Amendments  proposed.  National  constitutional  convention  of  1860 
(September  14-25).  Conflict  between  Buenos  Aires  and  the  confed- 
eration.    Amendments  of  1866.    Amendments  of  1898. 

The  constitutional  convention  which  assembled  in  the  city  of 
Santa  Fe  on  November  20,  1852,  met  under  the  most  unfavorable 
circumstances.  It  is  true  that  every  province  with  the  exception  of 
Buenos  Aires  was  represented,  but  it  is  important  to  bear  in  mind 
what  the  absence  of  this  province  signified.  The  prospect  of  forming 
a  vigorous  federation  without  Buenos  Aires  was  not  encouraging. 
With  less  than  one-third  of  the  population  and  about  one-fourth  of 
the  wealth  of  the  country,  the  thirteen  provinces  were  certain  to 
cut  a  rather  sorry  figure  in  their  isolation.  The  most  serious  factor 
in  the  situation  was  the  fact  that  the  central  government  of  the 
confederation  had  always  depended  upon  the  customs  dues  for  its 
support.  As  the  city  of  Buenos  Aires  was  practically  the  only  port 
of  entry,  the  central  government  would  be  deprived  of  its  most 
important  means  of  support.  The  system  of  provincial  taxation 
was  so  defective  that  it  yielded  but  an  insignificant  revenue.  No 
attempt  at  direct  federal  taxation  had  ever  been  made.  In  1852 
the  revenues  from  customs  dues  amounted  to  $4,000,000  gold,  which 
would  have  been  ample  to  support  the  central  government,  but 
which  was  diverted  into  the  treasury  of  the  province  of  Buenos  Aires. 

It  is  no  wonder,  therefore,  that  the  enthusiasm  which  marked  the 
first  announcement  of  the  calling  of  a  national  constitutional  conven- 
tion should  have  cooled  somewhat  by  the  time  the  delegates  met  in 
November  1852.  In  fact,  had  the  revolution  in  Buenos  Aires  broken  out 
a  few  months  earlier  it  is  doubtful  whether  General  Urquiza  could  have 
secured  the  attendance  of  delegates  from  all  the  provinces.1  It  was 
evident  that  the  absence  of  Buenos  Aires  meant  the  beginning  of  a 

1  Mariano  A.  Pelliza,  Historia  de  la  Organizacion  Nacional,  Buenos  Aires,  1897,  pp.  73  ff. 

41 


4£  The  Federal  System  of  the  Argentine  Republic 

struggle  between  the  provinces  and  this  indispensable  portion  of  the 
confederation.  The  delegates  all  realized  that  without  the  province  of 
Buenos  Aires  a  vigorous  national  organization  was  impossible.  There 
was  general  agreement  that  this  province  had  to  come  into  the  confeder- 
ation, willingly,  if  possible  —  by  force,  if  necessary.  General  Urquiza, 
in  his  opening  address,1  expressed  the  opinion  of  the  delegates  when 
he  said: 

"The  absence  of  Buenos  Aires  does  not  mean  permanent  separation, 
it  is  more  in  the  nature  of  a  passing  accident.  Geographical  conditions, 
historical  traditions,  and  a  series  of  treaties  and  agreements  bind  Buenos 
Aires  to  the  nation.  She  can  no  more  continue  indefinitely  without  her 
sister  provinces  than  her  sister  provinces  without  her.  In  the  Argentine 
flag  there  is  room  for  more  than  fourteen  stars,  but  it  is  not  possible  to 
eliminate  any  one  of  these." 

It  is  not  surprising,  therefore,  that  in  the  minds  of  some  of  the 
delegates  there  was  considerable  misgiving  as  to  the  ultimate  success 
of  the  undertaking  upon  which  they  had  embarked.  In  fact,  these 
misgivings  took  definite  shape  in  the  form  of  a  motion  presented  by 
Dr.  Facundo  Zuviria,  the  presiding  officer,  on  April  19,  1853,  to 
postpone  the  adoption  of  a  constitution.  In  a  long  speech  delivered 
the  following  day  he  maintained  that  no  attempt  should  be  made 
to  adopt  a  new  constitution  until  the  country  had  been  pacified  and 
real  unity  attained.  Although  this  view  received  but  little  support, 
the  somewhat  bitter  replies  made  to  the  president's  speech  indicate 
that  the  delegates  were  deeply  impressed  with  the  unfavorable  condi- 
tions under  which  the  assembly  had  met.  In  some  respects  the 
work  of  the  convention  of  1852  was  more  clearly  defined  than  that 
of  any  previous  Argentine  constitutional  assembly.  Most  of  the 
previous  assemblies  met  without  definite  program  and  without  clearly 
defined  powers.  The  result  was  that  in  many  instances  they  assumed 
extensive  legislative  powers  and  at  times  failed  to  fulfill  the  main 
purpose  for  which  they  had  been  called.  For  the  convention  of 
1852  the  program  was  prescribed  by  the  agreement  of  San  Nicolas. 
Not  only  was  the  convention  directed  to  adhere  to  the  federal  prin- 
ciple in  organizing  the  national  government,  but  it  was  also  required 
to  establish  freedom  of  domestic  commerce,  to  provide  adequate 
national  revenues,  and  to  assure  the  payment  of  the  public  debt. 

Although  the  convention  met  on  November  20,  1852,  the  draft 
of  the  constitution  was  not  submitted  by  the  committee  on  constitu- 
tional affairs  until  April  18,  1853.  The  material  submitted  to  the 
committee  as  a  basis  for  its  labors  was  extremely  meager.  It  is  true 
that  the  agreement  of  San  Nicolas  declared  the  interprovincial 
treaty  of  January  4,  1831,  to  be  the  fundamental  law  of  the  Republic, 

1  Owing  to  the  revolution  in  Buenos  Aires  he  was  unable  to  be  present  personally,  but  his  ad- 
dress was  read  to  the  convention. 


Constitution  of  1853.     Amendments  of  I860,  1866,  1898        43 

but  this  treaty,  while  recognizing  the  federal  system,  did  not  contain 
the  elements  of  a  national  constitution. 

It  was  reported  by  one  of  the  delegates  that  during  the  preliminary 
sessions  of  the  convention  considerable  use  was  made  of  the  "Fed- 
eralist," but  it  is  certain  that  the  document  which  played  the  most 
important  part  in  determining  the  views  of  the  delegates  was  the 
draft  of  a  federal  constitution  submitted  by  Juan  Bautista  Alberdi, 
who  had  migrated  from  the  Argentine  Republic  during  the  dictator- 
ship of  Rosas  and  who  was  living  in  Chile  at  the  time.  It  is  evident, 
however,  that  the  members  of  the  committee  on  constitutional  affairs 
were  acquainted  with  the  constitution  of  the  United  States.  A 
comparison  of  Alberdi's  draft  with  that  submitted  by  the  special 
committee  to  the  convention  shows  that  the  committee  made  liberal 
use  of  the  provisions  of  the  constitution  of  the  United  States.  In 
fact,  the  chairman  of  the  committee,  in  submitting  the  constitution 
to  the  convention,  said:  "The  draft  of  the  committee  has  been  cast 
in  the  mold  of  the  constitution  of  the  United  States,  the  only  model 
now  existing  for  a  real  federation."  1 

The  report  of  the  committee  intrusted  with  the  drafting  of  a 
constitution 2  was  submitted  to  the  convention  on  April  18,  1853.* 
The  document  is  brief  and  contains  the  merest  outline  of  the  system 
of  government  proposed.  In  addition  to  the  project  of  a  constitution 
the  committee  submitted  drafts  of  two  laws:  one  for  the  organization 
of  the  financial  system  of  the  confederation  and  the  other  for  the 
nationalization  of  the  city  of  Buenos  Aires  and  its  establishment  as 
the  national  capital,  in  conformity  with  article  3  of  the  constitution. 
On  May  1,  1853,  the  constitution  was  signed  by  the  delegates  of  the 
provinces  represented  and  on  May  25  General  Urquiza,  provisional 
director  of  the  Argentine  confederation,  proclaimed  the  constitution  the 
supreme  law  of  the  land.  In  August  1853,4  General  Urquiza  ordered  the 
holding  of  elections  for  president  and  vice-president.  He  was  elected 
president  and  Dr.  del  Carril  vice-president.  The  city  of  Parana  (prov- 
ince of  Entre  Rios)  was  declared  the  temporary  capital  of  the  confeder- 
ation 5  until  the  settlement  of  the  pending  differences  with  the  province 
of  Buenos  Aires. 

The  grave  question  which  now  presented  itself  was  the  relation 
of  the  province  of  Buenos  Aires  to  the  federation.  Article  VII  of 
the  law  designating  Buenos  Aires  as  the  national  capital  provided 
that  a  special  committee  of  the  convention  should  submit  the  con- 
stitution to  the  authorities  of  the  province  with  a  view  to  securing 

1  Proceedings  of  the  Constitutional  Convention,  Session  April  20,  1853.     See  volume  entitled 

"Conveneion  Nacional,"  p.  270. 
»  Comision  de  Negoeios  Constitucionales. 
>  See  volume  on  Conveneion  Nacional  de  1898  containing  proceedings  of  convention  of  1852-53, 

p.  264. 
«  Decree  of  August  29,  1853.  5  Law  of  December  18,  1853. 


44  The  Federal  System  of  the  Argentine  Republic 

its  acceptance.  Both  the  national  constitution  and  the  law  creating 
the  federal  district  of  Buenos  Aires  were  promptly  rejected  by  the 
legislature  of  the  province.  A  long  struggle  between  the  federation 
and  the  province  now  follows.  General  Urquiza,  the  president  of 
the  federation,  saw  clearly  that  every  effort  would  have  to  be  directed 
toward  bringing  the  province  of  Buenos  Aires  into  the  union.  Under 
the  then  existing  conditions,  with  the  city  of  Buenos  Aires  the  only 
port  of  entry,  the  other  provinces  were  compelled  to  pay  tribute  to 
Buenos  Aires.  All  goods  imported  from  Europe  first  paid  customs 
dues  in  Buenos  Aires.  The  independence  of  this  important  province 
was,  therefore,  a  real  burden  to  the  other  provinces.  In  order  to 
lighten  this  burden  and  at  the  same  time  bring  pressure  to  bear  on 
the  people  and  government  of  Buenos  Aires,  a  system  of  differential 
duties  was  inaugurated  in  1856.  Under  this  plan  prohibitory  duties 
were  placed  upon  imports  which  did  not  come  directly  from  foreign 
ports.  This  measure  served  to  increase  the  enmity  between  Buenos 
Aires  and  the  federation.  The  fact  that  these  differential  duties 
did  not  bring  about  the  results  anticipated  strengthened  the  belief  of 
the  leaders  of  the  confederation  that  if  Buenos  Aires  could  not  be 
induced  to  come  into  the  union  willingly  she  would  have  to  be  forced 
to  do  so.  A  number  of  attempts  to  bring  about  a  modus  vivendi 
failed.  The  most  notable  of  these  was  undertaken  by  the  American 
charge  d'affaires,  Colonel  Yancey,  in  1858,  but  failed  because  of  the 
conditions  attached  by  the  government  of  the  province.1 

In  October  1859  the  conflict  between  the  federal  and  provincial 
forces  culminated  in  actual  warfare.  The  first  action  at  Cepeda 
resulted  in  a  victory  for  the  federal  forces.  General  Urquiza  fol- 
lowed up  this  advantage  by  a  rapid  march  toward  the  city  of 
Buenos  Aires.  Thus  invaded  and  threatened  with  the  capture  of 
the  capital,  the  government  of  Buenos  Aires  was  prepared  to  com- 
promise. On  November  10  a  treaty  of  peace  was  signed,  ratified 
on  the  following  day  (November  11),  and  supplemented  by  a  further 
agreement  of  June  6,  1860.     This  treaty  provided: 

First.  The  province  of  Buenos  Aires  to  enter  the  federation. 

Second.  A  provincial  constitutional  convention  to  be  called  for 
the  purpose  of  examining  the  national  constitution  of  1853.  If  the 
convention  adopts  the  constitution  without  amendment  the  province 
of  Buenos  Aires  shall  accept  the  same  without  delay. 

Third.  In  case  the  provincial  convention  proposes  amendments,  a 
national  constitutional  convention  ad  hoc  shall  be  called. 

The  constitutional  convention  of  the  province  of  Buenos  Aires 
assembled  on  January  5,  1860.  More  than  a  month  was  lost  in  the 
discussion  of  credentials  of  delegates.     The  question  of  accepting  the 

1  These  conditions  were:    (a)  That  the  city  of  Buenos  Aires  should  not  he  the  federal  capital; 
(6)  That  General  Urquiza  should  retire  and  occupy  no  public  office  under  the  confederation. 


Constitution  of  1853.     Amendments  of  I860,  1866,  1898        45 

national  constitution  without  amendment  was  put  to  vote  and 
negatived.  A  special  committee  was  then  appointed  to  examine 
the  national  constitution  and  to  propose  amendments.  This  com- 
mittee began  its  labors  on  April  6,  1860,  and  remained  in  session 
until  May  3,  when  its  report  was  submitted  to  the  convention.1  In 
the  amendments  proposed  by  the  committee  the  influence  of  the 
constitution  of  the  United  States  is  everywhere  apparent.  The 
chairman  of  the  committee,  Dr.  Dalmacio  Velez-Sarsfield,  in  present- 
ing the  report,  said : 

"The  constitution  (of  the  United  States  of  America)  has  in  seventy 
years  assured  the  progress  of  an  immense  continent.  The  framers  of  the 
Argentine  constitution  adopted  it  as  a  model  in  framing  the  constitution 
which  we  are  now  examining.  They  did  not,  however,  respect  its  sacred 
text,  but  in  their  ignorance  and  with  the  idea  of  improving  upon  it,  sup- 
pressed certain  portions  and  altered  others.  Your  committee  has  done 
nothing  more  than  incorporate  into  the  Argentine  system  those  portions 
of  the  constitution  of  the  United  States  which  the  framers  of  the  constitution 
of  1853  had  altered  to  the  detriment  of  their  political  system." 

The  amendments  proposed  by  the  committee  were  made  the  sub- 
ject of  prolonged  discussion,  but  were  finally  adopted  by  the  conven- 
tion on  May  12,  1860. 

In  accordance  with  the  provisions  of  the  treaty  of  November  11, 
1859,  and  the  agreement  of  June  6,  1860,  the  amendments  proposed 
by  the  convention  of  Buenos  Aires  were  to  be  submitted  to  a  national 
constitutional  convention  called  for  this  purpose.  In  accordance 
with  this  arrangement  the  national  convention  met  in  the  city  of 
Santa  Fe  September  14,  1860.  On  September  23  the  special  com- 
mittee appointed  to  examine  the  amendments  proposed  by  the  Buenos 
Aires  convention  presented  its  report  recommending  the  acceptance 
of  the  proposed  amendments  with  a  few  verbal  but  unimportant 
changes.  The  convention  adjourned  September  25,  after  adopting 
the  amendments  as  proposed  by  the  committee.  The  amendments 
incorporated  into  the  constitution  may  be  classified  as  follows : 2 

First.  Appendix  B  gives  article  3  as  follows: 

"The  authorities  exercising  the  functions  of  the  federal  government 
6hall  reside  in  the  city  which  shall  be  declared  by  special  act  of  Congress 
to  be  the  capital  of  the  republic,  a  previous  cession  of  the  territory  which 
shall  become  federal  being  made  by  one  or  more  of  the  provincial  legisla- 
tures." 

Second.  Article  4  of  the  constitution   gave    to    the    federal    government 
the  power  to  levy  export  duties.     The   Buenos  Aires  convention  proposed 

1  Diario  de  Sesionea  de  la  Convencion  del  Estado  de  Buenos  Aires,  encargada  del  examen  de  la 

Constitucion  Federal  y  Anexas,   1860.     See  especially  speech  of  Dr.  Velez-Sarsfield  in 
presenting  the  report  of  the  commission. 

2  Proceedings  of  National  Convention  of  I860,  in  an  official  publication  entitled  "Convencion 

Nacional  de  1898,"  pp.  640-642,  in  which  the  proceedings  of  the  conventions  of  1860  and 
1866  are  reprinted.     Also  Del  Valle,  Derecho  Constituoional,  p.  507  ff. 


46  The  Federal  System  of  the  Argentine  Republic 

that  all  export  duties  should  cease  in  1S66.1  It  is  evident  that  Buenos  Aires 
as  the  only  exporting  province  felt  the  burden  of  this  form  of  taxation  and 
was  anxious,  therefore,  to  take  this  power  from  the  federal  government. 
The  acceptance  of  this  amendment  made  article  4  read  as  follows: 

"The  federal  government  shall  defray  the  expenses  of  the  nation  with 
the  funds  of  the  national  treasury,  consisting  of:  receipts  from  import 
and  export  duties;  duties  to  be  levied  until  1866  on  the  exports  of  domestic 
merchandise  as  provided  in  paragraph  Aro.  1  of  article  67  of  the  present 
constitution;*  proceeds  of  the  sale  or  lease  of  national  lands;  revenues 
of  the  postal  service;  taxes  levied  by  the  general  congress  equitably 
and  in  proportion  to  the  population;  and  moneys  obtained  through 
loans  and  financial  operations  decreed  by  said  congress  for  national 
urgencies,  or  for  works  of  national  utility." 

Third.  Article  5  of  the  constitution,  of  1853  provided  for  free  schools 
up  to  the  grade  of  high  schools.3  Owing  to  the  limited  resources  of  many 
of  the  provinces,  the  obligation  to  establish  free  schools  was  eliminated. 
This  article  also  provided  that  the  constitutions  framed  by  the  several  prov- 
inces should  be  submitted  to  the  national  congress  for  approval  before 
taking  effect.  The  province  of  Buenos  Aires  had  adopted  a  constitution 
in  1854  and,  the  provincial  convention  being  opposed  to  the  submission  of 
this  constitution  to  the  congress,  proposed  the  suppression  of  this  require- 
ment.   Article  5  as  amended  reads: 

"Each  province  shall  adopt  its  own  constitution,  which  shall  provide 
for  the  administration  of  justice  in  its  own  territory,  its  municipal  sys- 
tem, and  primary  instruction,  such  constitution  to  be  framed  upon  the 
republican  representative  plan,  in  harmony  with  the  principles,  declara- 
tions, and  guaranties  of  the  national  constitution.  Upon  these  con- 
ditions, the  federal  government  shall  guarantee  to  each  province  the 
enjoyment  and  exercise  of  its  institutions." 

Fourth.  Article  6  of  the  constitution  of  1853  gave  to  the  federal  govern- 
ment the  power  to  intervene  in  the  government  of  a  province  upon  the 
request  of  the  legislature  or  governor  or  without  such  request  for  the  purpose 
of  suppressing  domestic  violence,  of  preserving  the  safety  of  the  nation  or 
repelling  foreign  invasion.  The  amendment  as  proposed  and  accepted 
brings  the  article  closer  to  article  IV,  section  4,  of  the  constitution  of  the 
United  States  by  providing  that  the  federal  government  shall  intervene  in 
the  government  of  the  provinces  to  guarantee  a  republican  form  of  govern- 
ment and  to  repel  foreign  invasion.  "When,  however,  domestic  violence 
or  the  invasion  of  another  province  either  threatens  the  constituted 
authorities  or  has  deposed  them,  the  federal  government  may  intervene 
only  upon  the  request  of  such  provincial  authorities.  In  making  this  distinc- 
tion it  is  evident  that  the  province  of  Buenos  Aires  wished  to  guard  against 
the  usurpation  of  provincial  authority  by  the  federal  government.  The 
article  as  finally  accepted  reads  as  follows: 

"  The  federal  government  shall  have  the  right  to  intervene  in  the  terri- 
tory of  the  provinces  in  order  to  guarantee  the  republican  form  of  gov- 

'  When  the  time  arrived  (or  the  taking  of  effect  of  this  amendment  the  country  was  at  war  with 
Paraguay.  As  this  source  of  income  could  not  be  dispensed  with,  a  constitutional  con- 
vention convened  in  Santa  Fe  restored  the  original  wording. 

•  The  words  printed  in  italics  were  ordered  to  be  stricken  out  by  the  national  convention  held 

at  Santa  Fe  on  September  12,  1866. 

*  "Educacion  Primaria,"  in  the  Argentine  system,  includes  the  graded  schools  up  to  the  "Colegio 

National"  or  high  school. 


Constitution  of  1853.     Amendments  of  1860,  1866,  1898       47 


ernment,  or  to  repel  foreign  invasion;  and,  when  requested  by  the  con- 
stituted authorities  to  maintain  them  in  power,  or  to  re-establish  them 
if  they  shall  have  been  deposed  by  sedition  or  by  invasion  from  another 
province." 

Fifth.  Article  12  of  the  constitution  of  1853  provided  that  vessels 
bound  from  one  provinoe  to  another  should  not  be  compelled  to  enter,  anchor, 
or  pay  duties  on  account  of  transit.  The  committee  of  the  Buenos  Aires 
convention,  desiring  to  make  forever  impossible  the  system  of  differential 
duties  which  the  confederation  had  inaugurated  in  1856,  added  to  this  clause 
a  provision  similar  to  that  of  article  I,  section  9,  paragraph  6,  of  the  constitu- 
tion of  the  United  States,  to  wit: 

"No  preference  shall  be  given  by  any  law  or  commercial  regulations 
to  one  port  over  another." 

Article  12  as  thus  amended  reads: 

"Vessels  bound  from  one  province  to  another  shall  not  be  compelled 
to  enter,  cast  anchor,  or  pay  duties  on  account  of  transit,  and  in  no  case 
shall  any  preference  be  given  to  one  port  over  another  by  means  of  com- 
mercial laws  or  regulations." 

Sixth.  Article  15  of  the  constitution  of  1853  prohibited  slavery.  In 
order  to  make  the  prohibition  all-inclusive,  the  Buenos  Aires  convention 
proposed  the  following  addition,  which  was  accepted  by  the  national  con- 
vention : 

"  Slaves  introduced  in  any  way  whatsoever  into  the  country  shall  become 
free  by  the  mere  act  of  setting  foot  upon  the  territory  of  the  republic." 

(a)  The  article  as  amended  reads: 

"There  shall  be  no  slaves  in  the  Argentine  nation.  Those  few  now 
existing  therein  shall  become  free  as  soon  as  this  constitution  becomes 
law.  The  indemnifications  which  may  have  to  be  paid  in  consequence 
of  this  declaration  shall  be  regulated  by  a  special  law.  Contracts  in- 
volving the  purchase  or  sale  of  persons  shall  be  criminal  acts,  for  which 
the  contracting  parties,  as  well  as  the  notary  or  official  before  whom 
they  are  executed,  shall  be  responsible.  Slaves  introduced  in  any  way 
whatever  into  the  country  shall  become  free  by  the  mere  fact  of  entrance 
into  the  territory  of  the  republic." 

(b)  Also  a  minor  amendment  to  article  18  abolishing  capital  punishment 
by  guillotine : 

"No  inhabitant  of  the  nation  shall  be  punished  except  after  trial  and 
conviction,  under  laws  anterior  to  the  commission  of  the  offense;  nor 
shall  he  be  tried  by  special  commissions,  or  removed  from  the  jurisdic- 
tion of  the  courts,  which,  under  the  laws  in  force  at  the  time  when  the 
offense  was  committed,  should  take  cognizance  of  his  case.  No  one 
shall  be  compelled  to  testify  against  himself;  nor  shall  anyone  be  ar- 
rested except  by  virtue  of  a  written  order  of  the  proper  authority.  The 
defense  of  persons  and  of  rights  before  the  courts  shall  be  inviolable. 
Domicile  as  well  as  epistolary  correspondence  and  private  papers  shall 
be  inviolable;  but  a  law  shall  determine  in  what  cases  and  under  what 
circumstances  the  former  may  be  entered,  and  the  latter  seized.  The 
penalty  of  death  for  political  offenses,  torture  of  all  kinds,  and  whipping 
are  abolished.  The  national  jails  shall  be  healthful  and  clean,  intended 
for  the  safe-keeping  and  not  for  the  punishment  of  the  offenders  de- 


48  The  Federal  System  of  the  Argentine  Republic 

tained  therein,  and  any  measure  which,  under  color  of  precaution,  tends 
to  inflict  upon  the  prisoners  more  hardships  than  those  required  for 
their  security  shall  cause  the  judge  authorizing  it  to  be  held  responsible." 

Seventh.  Article  30  of  the  constitution  of  1853  provided  that  the 
constitution  could  only  be  amended  ten  years  after  its  acceptance.  The 
convention  of  Buenos  Aires  proposed  the  elimination  of  this  limitation, 
which  was  accepted  by  the  national  convention.  As  amended,  article  30 
reads : 

"The  constitution  may  be  amended  either  wholly  or  in  part.  The 
necessity  for  such  amendment  shall  be  declared  by  Congress,  by  a 
vote  of  at  least  two-thirds  of  its  members;  but  the  amendment  itself 
shall  not  be  made  except  by  a  convention  called  for  that  purpose." 

Eighth.  Article  31  of  the  constitution  of  1853  established  the  supremacy 
of  the  constitution,  the  laws  made  in  pursuance  thereof,  and  the  treaties 
with  foreign  powers  in  the  same  form  as  article  VI,  paragraph  2,  of  the  con- 
stitution of  the  United  States.  The  convention  of  Buenos  Aires,  desiring 
to  preserve  the  provisions  of  the  pact  of  union  of  June  6,  1860,  proposed  the 
following  addition,  which  was  accepted  by  the  national  convention: 

"This  rule  is  not  applicable  to  the  province  of  Buenos  Aires,  in  so 
far  as  the  treaties  ratified  after  the  compact  of  the  11th  of  November 
1859,  are  concerned." 

Article  31  as  thus  amended  reads: 

"This  constitution,  the  national  laws  which  may  be  enacted  by  con- 
gress in  pursuance  thereof,  and  treaties  with  foreign  powers  shall  be  the 
supreme  law  of  the  nation;  and  the  authorities  of  each  province  shall  be 
bound  to  abide  by  them,  any  provision  in  their  own  provincial  constitu- 
tions or  laws  to  the  contrary  notwithstanding.  This  rule  shall  not  be 
applicable  to  the  province  of  Buenos  Aires,  in  so  far  as  the  treaties  rati- 
fied after  the  compact  of  the  11th  of  November,  1859,  are  concerned." 

Ninth.  The  convention  of  Buenos  Aires  proposed  that  after  article  31 
of  the  constitution  of  1853  four  important  additions  be  made,  which  con- 
stitute articles  32,  33,  34,  and  35  of  the  constitution  at  present  in  force. 
These  articles  are  intended  (c)  to  protect  the  liberty  of  the  press  and  to 
prevent  the  extension  of  federal  jurisdiction  over  this  subject: 

"The  federal  congress  shall  not  pass  any  law  restricting  the  liberty 
of  the  press,  or  subjecting  it  to  federal  jurisdiction." 

(6)  To  establish  the  inviolability  of  certain  rights  not  enumerated  in 
the  constitution,  following  the  example  of  the  ninth  amendment  to  the 
constitution  of  the  United  States: 

"The  declarations,  rights,  and  guaranties  enumerated  in  the  consti- 
tution shall  not  be  construed  as  involving  the  denial  of  any  other  rights 
and  guaranties,  not  enumerated,  but  naturally  derived  from  the  prin- 
ciples of  the  sovereignty  of  the  people  and  of  the  republican  form  of 
government." 

(c)  Establishing  incompatibility  between  the  exercise  of  federal  and 
provincial  judicial  functions: 

"The  judges  of  the  federal  courts  shall  not  at  the  same  time  be  judges 
in  the  provincial  courts.  Neither  shall  a  position  in  the  federal  service, 
whether  civil  or  military,  confer  upon  the  official  who  holds  it  the  rights 


Constitution  of  186S.     Amendments  of  1860,  1S66,  1898        49 

of  residence  in  the  province  wherein  it  is  held,  and  which  may  not  be 
his  habitual  abode,  this  provision  applying  to  their  being  chosen  to  posi- 
tions in  the  province  in  which  they  may  accidentally  happen  to  be." 

(d)  Providing  that  the  term  "The  Argentine  Nation"  should  be  used 
in  the  enactive  clause  of  all  laws: 

"The  names  of  'The  United  Provinces  of  the  Rio  de  la  Plata'  'The 
Argentine  Republic,'  'The  Argentine  Confederation,'  adopted  in  suc- 
cession since  1810,  may  in  future  be  used  indiscriminately  as  the  official 
designation  of  the  government  and  the  territory  of  the  provinces;  but 
the  name  of  'The  Argentine  Nation'  shall  be  used  in  the  enactment 
and  approval  of  the  laws." 

Tenth.  Article  34  of  the  constitution  of  1853  (present  article  38),  in 
providing  for  the  number  of  representatives  in  the  lower  house  of  the  national 
congress,  had  given  to  the  prospective  capital  city  —  Buenos  Aires  —  six 
representatives.  The  convention  of  the  province  which  was  opposed  to  the 
federalization  of  the  city  proposed  and  secured  the  acceptance  of  an  amend- 
ment eliminating  mention  of  special  representation  for  the  city  of  Buenos 
Aires  and  providing  for  twelve  representatives  from  the  province: 

"The  deputies  to  the  first  congress  shall  be  elected  in  the  following 
proportion:  For  the  province  of  Buenos  Aires,  twelve;  for  the  province 
of  C6rdoba,  six;  for  the  province  of  Catamarca,  three;  for  the  province 
of  Corrientes,  four;  for  the  province  of  Entre-Rfos,  two;  for  the  prov- 
ince of  Jujuy,  two;  for  the  province  of  Mendoza,  three;  for  the  province 
of  La  Rioja,  two;  for  the  province  of  Salta,  three;  for  the  province  of 
Santiago,  four;  for  the  province  of  San  Juan,  two;  for  the  province  of 
Santa  F6,  two;  for  the  province  of  San  Luis,  two;  for  the  province  of 
Tucum&n,  three." 

Eleventh.  Article  36  of  the  constitution  of  1853  (present  article  40), 
in  determining  the  qualifications  for  members  of  the  chamber  of  deputies, 
simply  prescribed  an  age  requirement  of  twenty-five  years  and  the  enjoyment 
of  citizenship  for  a  period  of  four  years.  This  gave  rise  to  great  abuses.  The 
difficulties  of  travel  and  the  small  and  uncertain  pay  of  members  of  the  house 
made  it  comparatively  easy  to  institute  a  system  by  which  the  representation 
of  distant  provinces  was  undertaken  by  residents  of  or  near  the  city  of 
Parana,  the  meeting-place  of  the  national  congress.  The  grave  defect  of  this 
plan  was  that  it  enabled  a  few  leaders  to  name  the  representatives  of  the 
more  distant  provinces  and  thus  practically  to  control  the  congress.  To 
remedy  this  abuse  the  provincial  convention  proposed  that,  in  addition  to 
the  qualifications  prescribed,  members  of  the  chamber  of  deputies  should 
either  be  native-born  citizens  of  the  provinces  they  represent  or  resident 
therein  for  the  two  years  preceding  their  election: 

"No  person  shall  be  elected  a  deputy  who  has  not  attained  the  age 
of  twenty-five,  who  has  not  been  a  citizen  for  four  years,  and  who  is  not 
a  native  of  the  province  electing  him  or  a  resident  thereof  for  the  two 
preceding  years." 

Twelfth.  Article  41  of  the  constitution  of  1853  (present  article  45) 
provided  for  the  impeachment  of  the  provincial  governors  as  well  as  the 
president  and  federal  judges;  charges  to  be  preferred  by  the  chamber  of 
deputies  and  to  be  tried  before  the  national  senate.  In  the  provincial  con- 
vention there  was  a  strong  feeling  that  this  gave  to  the  federal  government 
too  great  a  power  over  the  provinces,  and  an  amendment  was,  therefore, 


50  The  Federal  System  of  the  Argentine  Republic 

proposed,  excluding  provincial  governors  from  impeachment  by  the  federal 
authorities: 

"The  house  of  deputies  alone  shall  have  the  right  to  impeach  before 
the  senate,  the  president,  the  vice-president,  the  ministers  of  the  execu- 
tive power,  the  justices  of  the  supreme  court,  and  the  judges  of  the  other 
inferior  tribunals  of  the  nation  for  malfeasance  or  crime  in  the  exercise 
of  their  functions,  or  for  ordinary  offenses.  Impeachment  of  such  per- 
son shall  be  made  after  investigation,  and  a  resolution  that  a  trial  is 
in  order  passed  by  a  vote  of  two-thirds  of  the  deputies  present." 

Thirteenth.  Article  43  of  the  constitution  of  1853  (present  article  47) 
was  amended  by  adding  the  same  requirement  for  senators  as  for  deputies, 
viz.,  they  must  be  either  native-born  citizens  of  the  province  they  represent 
or  have  resided  therein  two  years  prior  to  their  election: 

"The  following  qualifications  shall  be  necessary  for  election  as  sena- 
tor: the  attainment  of  the  age  of  thirty;  citizenship  in  the  nation  for 
six  years;  the  enjoyment  of  an  annual  income  of  two  thousand  pesos 
in  coin,  or  an  equivalent  amount  of  capital;  and  nativity  in  the  province 
which  elects  him  or  residence  therein  for  the  two  years  immediately 
preceding." 

Fourteenth.  Article  51  of  the  constitution  of  1353  provided  that  all 
amendments  to  the  constitution  should  originate  in  the  senate.  The  elim- 
ination of  this  provision  was  proposed  by  the  provincial  convention  and 
accepted,  thus  leaving  the  procedure  of  amendments  as  provided  by 
article  30: 

"The  constitution  may  be  amended  either  wholly  or  in  part.  The 
necessity  for  such  amendment  shall  be  declared  by  congress,  by  a  vote 
of  at  least  two-thirds  of  its  members;  but  the  amendment  itself  shall 
not  be  made  except  by  a  convention  called  for  that  purpose." 

Fifteenth.  To  article  64  of  the  constitution  of  1853  (present  article  67) 
four  amendments  were  proposed  and  accepted: 

(a)  Requiring  uniformity  of  customs  dues  throughout  the  territory  of  the 
republic : 

"To  legislate  in  regard  to  custom-houses  and  to  establish  import 
duties,  which,  as  well  as  the  rates  of  appraisement  on  which  they  must 
be  based,  shall  be  uniform  throughout  the  nation;  it  being  thoroughly 
understood,  however,  that  these  duties  and  all  other  taxes  of  a  national 
character  are  payable  in  the  currency  of  the  respective  provinces  in  their 
exact  equivalent  value.  And,  likewise  to  establish  export  duties  up  to 
1866,  at  which  time  they  shall  cease  to  be  either  national  or  provincial  taxes."  * 

(6)  Prohibiting  the  federal  government  from  suppressing  the  custom- 
houses existing  in  any  province  at  the  time  of  its  incorporation  into  the  union: 

"To  regulate  the  free  navigation  of  the  rivers  in  the  interior,  to  de- 
clare as  ports  of  entry  those  which  may  be  deemed  fit  for  that  purpose, 
and  to  establish  or  abolish  custom-houses.  But  the  custom-houses 
for  foreign  commerce,  existing  in  each  province  at  the  time  of  its  com- 
ing into  the  national  union,  shall  not  be  abolished." 

(c)  Reserving  to  the  provinces  the  enforcement  of  the  national  codes 
and  prescribing  the  determination  of  citizenship  by  place  of  birth: 

1  Words  in  italics  stricken  out  September  12,  1866. 


Constitution  of  1853.     Amendments  of  1860,  1866,  1898         51 

"To  enact  civil,  commercial,  penal,  anil  mining  codes  without  en- 
croaching upon  the  local  jurisdictions,  the  provisions  of  such  codes  to 
be  enforced  either  by  the  federal  or  provincial  courts  according  as  the 
matters  or  persons  may  fall  under  their  respective  jurisdictions.  And 
especially  to  enact  general  laws  on  naturalization  and  citizenship,  for 
the  whole  nation,  based  upon  the  principle  of  citizenship  by  nativity,  as 
well  as  laws  on  bankruptcy,  counterfeiting  of  money  and  forging  of  public 
documents  of  the  state  and  on  the  establishment  of  trial  by  jury." 

(d)  Taking  from  the  congress  the  power  to  examine  the  provincial  con- 
stitutions and  to  reject  such  as  are  not  in  harmony  with  the  national 
constitution. 

Sixteenth.  Amendment  to  article  83  of  the  constitution  of  1853  (article 
86,  clause  22,  of  the  present  constitution),  limiting  the  powers  of  the  presi- 
dent during  recess  of  congress  as  follows: 

"The  President  shall  have  the  power  to  fill  those  vacancies  which 
require  the  consent  of  the  Senate,  and  which  occur  during  a  recess,  by 
means  of  appointments  which  shall  expire  at  the  close  of  the  next  session." 

Seventeenth.  Article  86  of  the  constitution  of  1853  (article  89  of  the 
present  constitution)  gave  to  the  members  of  the  president's  cabinet  wide 
powers  of  promulgating  decrees  with  the  approval  of  the  president.  The 
abolition  of  this  power  was  suggested  by  the  convention  of  Buenos  Aires 
and  approved  by  the  national  convention: 

"The  ministers  shall  not,  in  any  case,  take  individual  action  on  any 
subject,  unless  it  concerns  only  the  internal  government  of  their  respective 
departments." 

Eighteenth.  Article  91  of  the  constitution  of  1853  (article  94  of  present 
constitution)  was  amended  in  minor  particulars  by  leaving  to  the  congress 
the  determination  of  the  number  of  justices  and  the  details  of  judicial 
organization: 

"The  judicial  power  of  the  nation  shall  be  vested  in  a  supreme  court 
of  justice  and  in  such  other  inferior  courts  as  congress  may  establish  in 
the  national  territory." 

Nineteenth.  Article  97  of  the  constitution  of  1853  (present  article  100) 
gave  to  the  federal  judiciary  the  power  to  settle  conflicts  between  the  con- 
stituted authorities  of  a  province.  This  power  the  convention  of  Buenos 
Aires  proposed  to  abolish  —  an  amendment  accepted  by  the  national  con- 
vention. With  a  few  additional  but  unimportant  changes  this  article  was 
made  to  read  as  follows: 

"The  Supreme  Court  and  the  inferior  courts  of  the  nation  shall  try 
and  decide  all  cases,  not  enumerated  in  clause  11  of  Art.  67,  which  arise 
under  the  provisions  of  this  constitution,  the  laws  of  the  nation,  or 
treaties  with  foreign  powers;  in  cases  concerning  ambassadors,  public 
ministers,  and  foreign  consuls;  in  cases  of  admiralty  and  maritime 
jurisdiction;  in  controversies  to  which  the  nation  is  a  party;  in  cases 
which  arise  between  two  or  more  provinces,  between  citizens  of  dif- 
ferent provinces,  and  between  a  province  or  its  citizens  and  a  foreign 
state  or  its  citizens." 

Twentieth.  In  order  to  bring  article  101  of  the  constitution  of  1853 
(article  104  of  present  constitution)  into  harmony  with  the  amendment  to 
article  31,  the  provincial  convention  proposed  to  this  article  a  reservation 


52  The  Federal  System  of  the  Argentine  Republic 

with  reference  to  the  existence  of  special  agreements  at  the  time  of  entering 

the  union: 

"The  provinces  retain  all  powers  not  delegated  by  the  present  con- 
stitution to  the  federal  government,  and  those  which  they  may  have 
expressly  reserved  by  special  agreements  at  the  time  of  their  coming 
into  the  union." 

Twenty-first.  In  order  to  bring  article  103  of  the  constitution  of  1853 
(article  106  of  present  constitution)  into  harmony  with  the  amendment  to 
article  5  it  was  proposed  to  eliminate  from  this  article  the  requirement  that 
provincial  constitutions  be  first  submitted  to  the  national  congress: 

"Each  province  shall  enact  its  own  constitution,  in  accordance  with 
the  provisions  of  article  5." 

The  acceptance  by  the  national  constitutional  convention  of  the 
amendments  proposed  by  the  convention  of  the  province  of  Buenos 
Aires,  while  settling  the  pending  constitutional  questions,  made 
prominent  the  precarious  position  of  the  federal  government  and 
the  personal  antagonisms  between  the  provincial  and  federal  leaders. 
The  lack  of  financial  resources  of  the  federal  government  made  it 
apparent  that  it  could  not  be  maintained  unless  assured  of  the 
customs  dues  collected  at  the  port  of  Buenos  Aires.  Although  the 
province  of  Buenos  Aires  was  willing  to  accept  the  constitution  as 
amended,  the  leaders  were  determined  to  control  federal  policy.  It 
was  evident  that  a  conflict  between  Buenos  Aires  and  the  federal 
government  was  inevitable.  A  pretext  was  not  difficult  to  find  and 
was  readily  forthcoming  in  a  difference  of  opinion  as  to  the  require- 
ments of  articles  37  and  41  of  the  constitution.  Article  37  provided 
that  for  the  purpose  of  electing  members  of  the  chamber  of  deputies, 
"the  provinces  and  the  capital  shall  be  considered  as  electoral  dis- 
tricts of  a  unitary  state."  Article  41  provided  that  for  the  first  elec- 
tion the  legislatures  of  the  respective  provinces  should  determine  the 
manner  of  electing  deputies.  The  legislature  of  Buenos  Aires  inter- 
preted this  to  mean  that  the  provincial  election  law  of  July  17,  1860, 
which  had  served  for  the  election  of  the  members  of  the  provincial 
constitutional  convention,  might  remain  in  force  and  by  act  of  October 
31,  1860,  so  decreed. 

When  the  twelve  deputies  thus  elected  presented  themselves 
they  were  refused  admission  and  the  congress  immediately  ordered 
the  holding  of  new  elections  for  deputies.  The  province  of  Buenos 
Aires  interpreted  this  action  as  an  affront  and  immediately  began 
active  preparations  for  war.  The  next  step  taken  by  the  congress 
was  to  pass  a  law  (July  5,  1861)  declaring  that  the  province  of  Buenos 
Aires  had  violated  the  compacts  of  November  11,  1859,  and  June  6, 
1860.  Her  action  was  declared  tantamount  to  sedition  and  the 
national  government  was  authorized  to  intervene  in  the  affairs  of 
the  province,  to  reestablish  order,  and  to  maintain  the  supremacy  of 
the  constitution.     Buenos  Aires  was   placed  under  martial  law  and 


Constitution  of  1853.     Amendments  of  1860,  1866,  1898         53 

communication  with  the  provincial  government  was  prohibited. 
The  federal  government  lacked  the  power  necessary  to  give  effect 
to  these  measures,  as  the  provincial  government  was  not  only  pre- 
pared to  offer  resistance,  but  was  actually  preparing  to  take  the 
offensive.  At  this  juncture  France,  England,  and  Peru  offered  their 
friendly  mediation,  but  all  efforts  at  adjustment  failed. 

The  conflict  was  brief  and  decisive  and  resulted  in  the  victory 
of  the  provincial  forces  under  General  Mitr6  at  the  battle  of  Pavon, 
October  17,  1861.  This  defeat  marks  the  downfall  of  the  national 
government.  President  Derqui  fled  to  Montevideo  and  on  December 
12,  1861,  the  congress  declared  the  national  executive  power  sus- 
pended until  a  new  national  assembly  could  be  convened.  General 
Mitr6,  governor  of  Buenos  Aires,  was  given  the  power  to  call  such 
an  assembly  and  also  was  intrusted  with  the  national  executive 
authority  until  the  contemplated  reorganization  of  the  national 
government  was  effected.  In  fulfillment  of  the  duty  imposed 
upon  him,  General  Mitr6,  by  decree  of  March  15,  1862,  ordered 
the  election  of  senators  and  deputies  to  the  national  congress. 

The  elections  were  held  in  April  and  the  new  congress  solemnly 
opened  on  May  25,  1862.  The  two  important  questions  to  be  settled 
were:  (1)  to  place  the  federal  finances  on  a  sound  basis,  and  (2)  to 
determine  the  seat  of  government.  The  provision  of  the  constitution 
making  the  customs  dues  national  rather  than  provincial  gave  to  the 
national  government  an  assured  income.  On  the  other  hand,  the 
question  of  the  seat  of  the  national  government  presented  grave 
difficulties.  Article  3  of  the  constitution  required  the  assent  of 
the  provincial  legislature  for  the  federalization  of  any  portion  of 
a  province  as  the  national  capital.  General  Mitre"  proposed  the 
federalization  of  the  entire  province  of  Buenos  Aires,  which  was 
voted  by  the  congress  by  act  of  August  20,  1862,  but  rejected  by 
the  provincial  legislature.  The  most  that  he  secured  from  the  local 
legislature  was  the  residence  of  the  national  authorities  in  and  with 
jurisdiction  over  the  city  of  Buenos  Aires  for  a  period  of  five  years, 
after  which  period  the  matter  should  be  taken  up  for  final  settlement. 

The  election  for  president  of  the  republic  which  took  place  in 
October  1862  resulted  in  the  choice  of  General  Mitre\  His  personal 
influence,  together  with  the  overshadowing  importance  of  the  nation's 
foreign  affairs,  especially  the  war  with  Paraguay,  obscured  for  a 
time  the  feeling  of  rivalry  between  Buenos  Aires  and  the  provinces. 
In  1866,  owing  largely  to  the  heavy  expenditures  incident  to  the 
war  with  Paraguay,  it  was  found  necessary  to  propose  an  amendment 
in  order  to  maintain  export  taxes  as  a  source  of  national  revenue. 
Article  4  of  the  constitution  provided  that  export  duties  on  domestic 
merchandise  could  only  be  levied  until  1866.  Article  67  provided 
that  in   1866,  all  export  taxes  for  national  purposes  should   cease, 


54  The  Federal  System  of  the  Argentine  Republic 

and,  furthermore,  that  no  such  taxes  should  ever  be  established  by 
the  provinces.  Owing  to  the  pressing  financial  needs  of  the  national 
government  the  congress  proposed  the  abolition  of  this  restriction 
and  provided  for  the  calling  of  a  national  constitutional  convention 
in  the  city  of  Santa  Fe,  which  adopted  amendments  to  articles  4  and 
67,  thus  enabling  the  federal  government  to  maintain  the  export 
taxes.    The  act  was  as  follows: 

"The  national  convention  enacts  the  following: 

"First:  That  part  of  article  4  of  the  national  constitution  which  reads: 
'Until  1866,  in  conformity  with  the  enactments  of  article  67,  clause  I,' 
shall  be  stricken  out,  the  said  article  to  read  as  follows: 

"The  federal  government  shall  defray  the  expenses  of  the  nation  with 
funds  of  the  national  treasury,  consisting  of  receipts  from  import  and 
export  duties;  proceeds  of  the  sale  or  lease  of  national  lands;  revenue  of 
the  postal  service;  taxes  levied  by  the  general  congress  equitably  and  in 
proportion  to  the  population,  and  moneys  obtained  through  loans  and 
financial  operations  decreed  by  congress  for  urgent  national  needs  or 
for  works  of  national  utility. 

"Second.  The  last  part  of  clause  1,  article  67,  which  reads:  'Up  to 
1866,  at  which  time  they  shall  cease  to  be  either  national  or  provincial  taxes,' 
shall  be  stricken  out,  so  as  to  make  said  clause  read  as  follows:  (1)  To  legis- 
late in  regard  to  custom-houses  and  to  establish  import  duties  which,  as 
well  as  the  rates  of  appraisement  on  which  they  are  based,  shall  be  uniform 
throughout  the  nation;  it  being  thoroughly  understood,  however,  that  these 
duties  and  all  other  taxes  of  a  national  character  are  payable  in  the  currency 
of  the  respective  provinces  in  their  exact  equivalent  value.  And  likewise  to 
establish  export  duties." 

In  1898  a  further  revision  :  of  the  constitution  was  undertaken, 
(1)  for  the  purpose  of  so  amending  article  37  as  to  raise  the  basis  of 
representation  for  members  of  the  chamber  of  deputies  from  20,000 
to  33,000  inhabitants;  also  to  require  the  congress  to  revise  the 
basis  of  representation  after  every  census;  (2)  amending  article  87 
by  increasing  the  number  of  members  of  the  president's  cabinet  from 
five  to  eight. 

1  "The  national  convention  assembled  in  the  capital  of  the  republic,  in  pursuance  of  law  No. 

3507  of  September  3,  1867,  sanctions: 

"First.    Articles  37  and  87  of  the  national  constitution  are  hereby  amended  as  follows: 

"Art.  37.  The  chamber  of  deputies  shall  consist  of  representatives  elected  directly 
and  by  simple  plurality  of  votes,  by  the  people  of  the  provinces  and  of  the  capital,  which 
shall  be  considered  for  this  purpose  as  mere  electoral  districts  of  a  single  state.  The  elec- 
tion shall  be  in  the  proportion  of  one  deputy  for  each  thirty-three  thousand  inhabitants  or 
fraction  thereof  of  not  less  than  sixteen  thousand  five  hundred.  After  the  taking  of  each 
census  congress  shall  fix,  according  to  its  results,  the  rate  of  representation,  which  in  no  case 
shall  be  less  than  that  now  established. 

"Art.  87.  Eight  ministers  or  secretaries  shall  have  charge  of  the  affairs  of  the  nation, 
and  shall  countersign  and  attest  all  acts  of  the  president,  which  without  this  requisite  shall 
lack  validity.    A  special  law  shall  determine  the  business  of  each  department." 


CHAPTER  VI. 

DIVISION  OF  FUNCTIONS  BETWEEN  THE  FEDERAL  GOVERNMENT 
AND  PROVINCES.  ENCROACHMENTS  OF  FEDERAL  AUTHORITY. 
CONSTITUTIONAL  POSITION  OF  THE  PROVINCES. 

Comparison  between  Constitution  of  Argentina  and  Constitution  of 
the  United  States.  Civil  and  penal  legislation.  Public  education. 
Industry  and  commerce.  Historical  development  of  provinces.  Con- 
stitutional Convention  of  1852.  Struggle  between  the  federation  and 
the  province  of  Buenos  Aires. 

In  examining  the  division  of  powers  between  the  federal  and  the 
provincial  governments,  it  is  important  to  bear  in  mind  that  the  strictly 
constitutional  line  of  division,  as  contained  in  the  fundamental  law, 
does  not  give  an  accurate  idea  of  the  actual  range  of  federal  functions. 
As  we  shall  have  occasion  to  see,  the  limited  resources  of  the  provinces 
have  compelled  the  central  government  to  adopt  a  most  liberal  inter- 
pretation of  federal  powers,  so  liberal  in  fact  as  to  supplant  in  some 
cases  not  only  the  provincial  governments  in  their  most  important 
functions,  but  actually  to  undertake  strictly  municipal  functions,  such 
as  the  construction  of  drainage  systems  in  cities,  local  water  supply, 
and  other  sanitary  works. 

The  line  of  division  between  federal  and  provincial  powers  can 
best  be  understood  after  an  examination  of  article  67  of  the  consti- 
tution, which  contains  an  enumeration  of  the  powers  of  congress: 

Article  67. 

1.  To  legislate  in  regard  to  custom-houses  and  to  establish  import 
duties,  which,  as  well  as  the  rates  of  appraisement  on  which  they  must  be 
based,  shall  be  uniform  throughout  the  nation;  it  being  thoroughly  under- 
stood, however,  that  these  duties  and  all  other  taxes  of  a  national  character, 
are  payable  in  the  currency  of  the  respective  provinces  in  their  exact  equiv- 
alent value.  And  likewise  to  establish  export  duties  up  to  1866,  at  which 
lime  they  shall  cease  to  be  either  national  or  provincial  taxes.1 

2.  To  levy  direct  taxes  for  a  definite  period  of  time  and  in  a  manner 
proportionately  equal  throughout  the  territory  of  the  nation,  whenever  the 
defense  of  the  country,  the  common  safety,  or  the  public  good  may  require  it. 

3.  To  borrow  money,  on  the  credit  of  the  nation. 

4.  To  provide  for  the  use  and  disposition  of  the  national  lands. 

5.  To  establish  and  organize  at  the  capital  a  national  bank,  with 
branches  in  the  provinces,  with  power  to  issue  bank  notes. 

6.  To  make  arrangements  for  the  payment  of  the  national  debt,  both 
foreign  and  domestic. 

7.  To  appropriate  annually  the  money  necessary  to  meet  the  expenses 
of  the  national  government,  and  to  approve  or  disapprove  the  accounts  of 
its  disbursement. 

1  Words  in  italics  stricken  out  September  12,  1866. 
55 


56  The  Federal  System  of  the  Argentine  Republic 

8.  To  grant  subsidies,  to  be  paid  out  of  the  national  treasury,  to  those 
provinces  whose  revenues,  according  to  their  budgets,  are  insufficient  to 
meet  their  ordinary  expenses. 

9.  To  regulate  the  free  navigation  of  the  rivers  in  the  interior,  to  de- 
clare as  ports  of  entry  those  which  may  be  deemed  fit  for  that  purpose,  and 
to  establish  or  abolish  custom-houses;  but  the  custom-houses  for  foreign 
commerce,  existing  in  each  province  at  the  time  of  its  coming  into  the  na- 
tional union,  shall  not  be  abolished. 

10.  To  coin  money,  fix  the  value  thereof  and  that  of  foreign  coins,  and 
to  adopt  a  uniform  system  of  weights  and  measures  for  the  whole  nation. 

11.  To  enact  civil,  commercial,  penal,  and  mining  codes  without  en- 
croaching upon  the  local  jurisdictions,  the  provisions  of  such  codes  to  be 
enforced,  either  by  the  federal  or  provincial  courts,  according  as  the  matters 
or  persons  may  fall  under  their  respective  jurisdictions;  and  especially  to 
enact  general  laws  on  naturalization  and  citizenship  for  the  whole  nation, 
based  upon  the  principle  of  citizenship  by  nativity;  as  well  as  laws  on  bank- 
ruptcy, counterfeiting  of  money,  and  forging  of  public  documents  of  the 
State,  and  on  the  establishment  of  trial  by  jury. 

12.  To  regulate  commerce  by  land  and  sea  with  foreign  countries  and 
among  the  provinces. 

13.  To  establish  and  regulate  the  post-offices  and  post-roads  of  the  nation. 

14.  To  settle  finally  the  national  boundaries,  to  fix  those  of  the  prov- 
inces, to  create  new  provinces,  and  to  provide  by  special  laws  for  the  organi- 
zation, administration,  and  government  of  the  national  territories  which 
may  be  left  outside  the  limits  assigned  to  the  provinces. 

15.  To  provide  for  the  security  of  the  frontiers  and  for  the  preserva- 
tion of  peaceful  intercourse  with  the  Indians,  and  to  promote  their  conversion 
to  Catholicism. 

16.  To  provide  for  all  that  conduces  to  the  prosperity  of  the  country, 
to  the  advancement  and  welfare  of  all  the  provinces,  and  to  the  advancement 
of  the  enlightenment  of  the  people,  by  prescribing  plans  for  general  and 
university  instruction,  and  by  promoting  industrial  enterprise,  immigra- 
tion, the  construction  of  railways  and  navigable  canals,  the  colonization  of 
the  public  lands,  the  introduction  and  establishment  of  new  industries,  the 
importation  of  foreign  capital,  and  the  exploration  of  the  ulterior  rivers,  by 
protective  laws  for  these  purposes,  by  concessions  of  privileges  for  a  limited 
time,  and  by  rewards  which  shall  act  as  an  encouragement. 

17.  To  establish  courts  inferior  to  the  supreme  court  of  justice;  to 
create  and  abolish  offices,  and  to  fix  the  duties  of  the  same;  to  grant  pen- 
sions, decree  honors,  and  to  grant  general  amnesties. 

18.  To  accept,  or  refuse  to  accept,  the  reasons  assigned  for  the  resig- 
nation of  the  president  or  vice-president  of  the  republic;  to  declare  that 
the  time  has  arrived  to  proceed  to  a  new  election,  to  count  the  returns  thereof, 
and  to  ascertain  the  result. 

19.  To  approve  or  reject  treaties  concluded  with  other  nations  and 
concordats  entered  into  with  the  Apostolic  See,  and  to  make  rules  for  the 
exercise  of  ecclesiastical  patronage  throughout  the  nation. 

20.  To  admit  into  the  territory  of  the  nation  religious  orders  in  addi- 
tion to  those  now  existing. 

21.  To  authorize  the  executive  power  to  declare  war  or  to  make  peace. 

22.  To  grant  letters  of  marque  and  of  reprisal  and  to  make  rules  con- 
cerning prizes. 

23.  To  fix  the  strength  of  the  land  and  naval  forces  in  times  of  peace  and 
of  war,  and  to  make  rules  and  ordinances  for  the  government  of  such  forces. 


Functions  between  Federal  Government  and  Provinces  57 

24.  To  authorize  the  calling  out  of  the  militia  of  any  or  all  the  provinces 
whenever  the  execution  of  the  laws  of  the  nation,  the  suppression  of  insur- 
rections, or  the  repelling  of  invasions  may  render  it  necessary.  To  provide 
for  the  organization,  equipment,  and  discipline  of  such  militia,  and  for 
the  administration  and  government  of  the  part  thereof  which  may  be  em- 
ployed in  the  service  of  the  nation,  leaving  to  the  provinces  the  power  to 
appoint  the  proper  chiefs  and  officers  of  their  respective  militias,  and  to 
enforce  in  regard  to  them  the  discipline  established  by  congress. 

25.  To  permit  the  introduction  of  foreign  troops  into  the  territory  of 
the  nation,  and  the  departure  therefrom  of  national  troops. 

26.  To  proclaim  a  state  of  siege  in  one  or  more  places  in  the  nation  in 
case  of  internal  disorder,  and  to  approve  or  suspend  the  state  of  siege  de- 
clared during  the  recess  of  congress  by  the  executive  power. 

27.  To  exercise  exclusive  legislative  power  throughout  the  territory  of 
the  national  capital,  and  in  all  other  places  acquired  by  purchase  or  cession 
in  any  province  for  the  construction  of  forts,  arsenals,  magazines,  or  other 
establishments  of  national  utility. 

28.  To  make  all  laws  and  regulations  which  shall  be  necessary  for  carry- 
ing into  execution  the  foregoing  powers  and  all  other  powers  vested  by  this 
constitution  in  the  government  of  the  Argentine  nation. 

Notwithstanding  the  many  points  of  similarity  between  this 
article  and  article  I,  section  8,  of  the  constitution  of  the  United  States 
which  is  given  below,  the  stronger  emphasis  of  national  power  in  the 
Argentine  constitution  is  immediately  apparent.  This  is  readily 
explained  by  the  peculiar  political  conditions  upon  which  the  Argen- 
tine federal  system  rests.1 

The  centralization  of  the  Spanish  colonial  system  developed  a 
uniformity  of  institutional  type  which  served  as  the  foundation  for 
the  growth  of  a  real  unity  of  national  sentiment.  The  problem  con- 
fronting the  founders  of  the  Argentine  Republic  was,  therefore,  totally 
different  from  that  with  which  our  constitutional  convention  had  to 
deal.  In  the  United  States,  federation  meant  centralization,  the 
attempt  to  overcome  the  defects  of  the  loosely  jointed  confederation. 
In  the  Argentine,  federation  meant  the  decentralization  of  the  Spanish 
system.  The  point  of  departure  of  the  two  systems  was,  therefore, 
essentially  different,  and  this  difference  appears  in  the  relations  be- 
tween the  federal  government  and  the  provinces.2 

Article  I,  section  8,  of  the  United  States  constitution  provides: 

1.  The  congress  shall  have  power  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States;  but  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States. 

2.  To  borrow  money  on  the  credit  of  the  United  States. 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the  several 
states,  and  with  the  Indian  tribes. 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures. 

1  See  Chapters  II  and  III.  *  See  pages  64-68. 


58  The  Federal  System  of  the  Argentine  Republic 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States. 

7.  To  establish  post-offices  and  post-roads. 

8.  To  promote  the  progress  of  science  and  useful  arts  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  rights  to  their  respective 
writings  and  discoveries. 

9.  To  constitute  tribunals  inferior  to  the  supreme  court. 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations. 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water. 

12.  To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years. 

13.  To  provide  and  maintain  a  navy. 

14.  To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces. 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions. 

16.  To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  states  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  congress. 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particular 
states  and  the  acceptance  of  congress,  become  the  seat  of  government  of 
the  United  States,  and  to  exercise  like  authority  over  all  places  purchased 
by  the  consent  of  the  legislature  of  the  state,  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dry-docks,  and  other  needful 
buildings. 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this  consti- 
tution in  the  government  of  the  United  States,  or  in  any  department  or 
officer  thereof. 

In  the  division  of  functions  established  under  the  Argentine  con- 
stitution certain  matters  are  placed  under  the  exclusive  jurisdiction 
of  the  central  government.      These  may  be  grouped  as  follows : ! 

First.  The  conduct  of  foreign  relations,  to  declare  war,  to  conclude 
peace,  the  formation  of  land  and  naval  forces,  and  the  issuance  of  letters  of 
marque  and  reprisal.  It  was  not  until  1862  that  the  plan  now  in  force  was 
incorporated  into  the  Argentine  system.  Prior  to  1835  the  administration 
of  foreign  affairs  was  vested  in  the  governor  of  one  of  the  provinces,  usually 
Buenos  Aires.  From  1835  to  1851  this  power  was  vested  in  Rosas,  who  had 
established  a  dictatorship.  After  his  overthrow  and  until  1861  the  conduct 
of  foreign  affairs  was  vested  in  the  governor  of  the  province  of  Entre-Rfos. 
With  the  final  organization  of  national  government  in  1862,  the  administra- 
tion of  foreign  affairs  came  within  the  exclusive  authority  of  the  federal 
government. 

Second.  The  regulation  of  commerce  with  foreign  countries,  between 
the  provinces,  and  with  the  Indian  tribes;  the  coinage  of  money;  the  estab- 

1  CJ.  Joae  Manuel  Estradu,  Curso  de  Derccho  Constitucional  Federal  y  Administrative  Buenos 
Aires,  1895. 


Functions  between  Federal  Government  and  Provinces  59 

lishment  of  a  uniform  system  of  weights  and  standards,  uniform  bankruptcy 
laws,  and  laws  for  the  punishment  of  piracy  on  the  high  seas. 

Third.     Legislation  relating  to  naturalization  and  citizenship. 

Fourth.    The  determination  of  the  relation  between  church  and  state. 

Fifth.  The  power  to  determine  the  territorial  limits  of  the  individual 
provinces  and  to  regulate  relations  with  Indian  tribes. 

Sixth.     The  establishment  of  post-offices  and  post-roads. 

Seventh.  Jurisdiction  over  the  territories  of  the  nation  and  over  such 
places  as  may  be  designated  for  national  institutions,  civil  or  military. 

Concurrent  jurisdiction  with  the  federal  government  is  exercised 
by  the  provinces  in  the  following  cases: 

First.  Legislation  relating  to  the  settlement  of  public  lands.  The 
federal  government  legislates  with  reference  to  public  lands  belonging  to  the 
nation,  whereas  the  jurisdiction  of  the  provinces  extends  over  the  public 
domain  of  the  provinces. 

Second.  The  establishment  of  banks  of  issue,  although  provincial  banks, 
requires  the  authorization  of  the  national  congress. 

Third.     The  encouragement  of  industry  and  the  fine  arts. 

Fourth.    The  encouragement  of  public  instruction. 

Fifth.  The  levying  of  taxes  with  the  one  limitation  that  the  provinces 
are  prohibited  from  levying  taxes  on  imports  or  exports. 

Sixth.  While  the  federal  government  is  given  power  to  prescribe  the 
civil,  criminal,  commercial,  and  mining  codes  for  the  nation,  the  provinces 
are  given  concurrent  power  with  the  federal  government  to  adopt  codes  of 
procedure. 

In  the  division  of  powers  between  central  and  local  governments, 
the  most  striking  contrasts  with  the  constitution  of  the  United  States 
are  to  be  found  in  the  articles  relating  to:  (1)  Civil  and  penal  legis- 
lation (Chap.  IV,  art.  67,  sec.  11);  (2)  public  instruction  (Chap.  IV, 
art.  67,  sec.  16) ;  (3)  industry  and  commerce  (Chap.  IV,  art.  67,  sec.  16). 

CIVIL  AND   PENAL  LEGISLATION. 

Article  67,  section  11,  of  the  Argentine  constitution  reads  as 
follows : 

"To  enact  civil,  commercial,  penal,  and  mining  codes  without  encroach- 
ing upon  the  local  jurisdictions,  the  provisions  of  such  codes  to  be  enforced 
either  by  the  federal  or  provincial  courts,  according  as  the  matters  or  persons 
may  fall  under  their  respective  jurisdictions.  And  especially  to  enact  general 
laws  on  naturalization  and  citizenship,  for  the  whole  nation,  based  upon 
the  principle  of  citizenship  by  nativity,  as  well  as  laws  on  bankruptcy,  coun- 
terfeiting of  money  and  forging  of  public  documents  of  the  state,  and  on  the 
establishment  of  trial  by  jury." 

This  article  gives  to  the  federal  congress  the  power  to  adopt  civil, 
commercial,  penal,  and  mining  codes  which  shall  apply  throughout 
the  republic.  This  unity  of  legislation  is  restricted  to  the  substantive 
law,  each  province  having  the  power  to  establish  its  own  codes  of 
procedure.  The  nationalization  of  the  civil  and  criminal  law  was 
the  natural  result  of  conditions  existing  during  the    colonial  period. 


60  The  Federal  System  of  the  Argentine  Republic 

Spain  gave  to  all  the  provinces  of  the  River  Plate  a  common  system 
of  law,  and  this  system  remained  in  force  after  the  declaration  of  in- 
dependence. The  constitution  of  1817  1  specifically  provided  that 
the  Spanish  civil  and  criminal  law  should  remain  in  force  until  the 
government  was  able  to  formulate  a  new  system. 

Pursuant  to  the  powers  granted  in  article  67,  the  following  national 
codes  were  adopted  by  the  congress: 

First.  The  commercial  code  by  act  of  September  12,  1862,  which  took 
effect  the  same  year.    In  1890  a  revision  of  this  code  was  completed. 
Second.  The  civil  code  by  act  of  September  29,  1869;  effective  in  1S71. 
Third.  The  mining  code  by  act  of  December  8,  1886;  effective  in  1887. 
Fourth.  The  penal  code  by  act  of  December  7,  1886;  effective  in  1892. 

The  power  thus  exercised  by  the  central  government  has  been 
regarded  by  some  eminent  Argentine  commentators  as  ha  essential 
contradiction  with  the  spirit  of  a  federal  system.2  The  more  recent 
commentators,  however,  agree  with  Alberdi,  who  as  early  as  1S52, 
in  formulating  the  '"bases  for  the  Argentine  constitution,''3  stated 
that  if  each  province  were  to  be  permitted  to  formulate  its  own  civil, 
commercial,  and  penal  codes,  the  result  would  be  neither  a  federal  nor 
a  consolidated  state,  but  rather  a  chaos  of  rules  which  would  be  a 
constant  obstacle  to  the  economic  and  social  progress  of  the  country. 

The  system  of  national  codes  is  now  so  firmly  established  that 
the  so-called  ''liberty  of  codes"  has  even  passed  out  of  the  realm 
of  academic  discussion.  In  fact,  the  movement  for  national  codes  of 
procedure  is  fast  gaining  ground. 

PUBLIC   EDUCATION. 

Chapter  IV,  article  67,  section  16  reads: 

"To  provide  for  all  that  conduces  to  the  prosperity  of  the  country,  to 
the  advancement  and  welfare  of  all  the  provinces,  and  to  the  advancement 
of  the  enlightenment  of  the  people,  by  prescribing  plans  for  general  and 
university  instruction  and  by  promoting  industrial  enterprise,  immigration, 
the  construction  of  railways  and  navigable  canals,  the  colonization  of  the 
public  lands,  the  introduction  and  establishment  of  new  industries,  the  im- 
portation of  foreign  capital,  and  the  exploration  of  the  interior  rivers,  by 
protective  laws  for  these  purposes,  by  concessions  of  privileges  for  a  limited 
time,  and  by  rewards  which  shall  act  as  an  encouragement." 

This  article  is  framed  in  general  terms  and  makes  the  establish- 
ment of  institutions  for  "general  and  university  instruction''  a 
function  of  the  federal  government.     Its  meaning  is  made  clearer 

i    Art.  II,  section  2. 

■   Cf.  Jose  M.  Estrada,  Politics  Liberal  bajo  la  tirania  dc  Rosas. 
Bases  y  Puntos  de  Partida  para  la  Orgsniiscion  Politica  de  la  Republics  Argentina,  by  Juan  B. 
Alberdi.  Valparaiso.  1853. 


Functions  between  Federal  Government  and  Provinces  61 

when  brought  into  relation  with  article  V,  which  makes  the  pro- 
vincial governments  responsible  for  the  primary  grades  —  i.e.,  the 
first  six  years  of  the  public-school  system.  This  does  not,  however, 
exclude  the  federal  government  from  all  participation  in  primary 
instruction,  but  gives  it  concurrent  powers  with  the  provinces.  Within 
the  last  few  years  the  federal  government  has  been  making  use  of 
this  power  by  establishing  primary  schools  in  the  country  districts, 
thus  supplementing  the  work  of  the  provinces.  Similarly,  the  pro- 
visions of  article  67  have  been  construed  to  give  the  provinces  powers 
concurrent  with  the  central  government,  in  the  establishment  of  uni- 
versities and  institutions  for  secondary  instruction.  The  province 
of  Santa  F6  has  established  a  university,  and  a  number  of  the  prov- 
inces, notably  Buenos  Aires,  Mendoza,  Corrientes,  and  C6rdoba,  have 
established  normal  and  high  schools. 

Broadly  construing  the  powers  granted  by  the  constitution,  the 
federal  government  in  1871  x  passed  a  law  under  which  the  federal 
treasury  contributes  toward  defraying  a  portion  of  the  expense  of 
primary  education  in  those  provinces  whose  resources  will  not  permit 
them  to  support  an  adequate  system.  In  1878  2  a  further  step  was 
taken  in  establishing  federal  supervision  over  instruction  in  private 
schools.  Finally,  in  1884,3  the  federal  government  established  the 
principle  of  compulsory  education  for  children  between  6  and  14  years. 


INDUSTRY  AND  COMMERCE. 

Article  67,  section  12  reads  as  follows: 

To  regulate  commerce  by  sea  and  land  with  foreign  countries,  and  among 
the  several  provinces. 

The  provision  of  the  Argentine  constitution  with  reference  to  the 
regulation  of  commerce  is  practically  the  same  as  article  1,  section  8, 
paragraph  3,  of  the  constitution  of  the  United  States.  The  federal 
congress  is  given  power  "to  regulate  commerce  by  sea  and  land 
with  foreign  nations  and  among  the  several  provinces."  In  the  inter- 
pretation of  this  article  the  jurisprudence  of  the  supreme  court  of  the 
United  States  has  been  followed.4 

In  order  to  supplement  this  general  grant  of  power,  section  16  of 
article  67  gives  to  the  federal  government  authority  to  adopt  such 
measures  as  may  promote  the  prosperity  of  the  country,  the  progress 

'  Act  of  September  21,  1871.  '  Act  of  September  30,  1878.  »  Act  of  July  8,  1884. 

4  See  opinion  of  supreme  court,  declaring  unconstitutional  a  tax  imposed  by  the  legislature  of 
Entre  Rfos  on  cattle  passing  through  the  territory  of  the  province.  An  attempt  was 
made  to  justify  the  tax  as  an  "inspection  duty,"  but  the  supreme  court  held  that  it  was 
a  tax  on  inter-provincial  commerce  and  as  such  unconstitutional.  (Opinions  Supreme 
Court,  2d  series,  Vol.  XII,  p.  498.)  Similarly  a  tax  on  introduction  of  cattle  imposed  by 
the  legislature  of  San  Juan.    (Opinions  Supreme  Court,  2d  series.  Vol.  VI,  pp.  378-383.) 


62  The  Federal  System  of  the  Argentine  Republic 

of  the  provinces,  and  the  enlightenment  of  public  opinion,  formu- 
lating for  these  purposes  programs  of  secondary  and  university  instruc- 
tion and  adopting  measures  for  the  development  of  immigration, 
the  construction  of  railroads  and  navigable  canals,  the  settlement  of 
public  lands,  the  establishment  of  new  industries,  the  introduction 
of  foreign  capital,  and  the  exploration  of  rivers  in  the  interior  of  the 
republic.  Three  methods  are  specified  by  which  the  congress  may 
accomplish  these  purposes:  (1)  legislation  adapted  to  this  purpose; 
(2)  grants  for  limited  periods  of  special  privileges  or  franchises  to 
private  companies;  (3)  the  offering  of  special  premiums  or  subsidies 
to  stimulate  private  effort. 

The  interpretation  and  exercise  of  federal  control  over  the  rail- 
roads of  the  country  represent  one  of  the  distinctly  nationalizing 
influences  in  the  political  development  of  the  country.  The 
railroad  law  passed  November  24,  1891  (law  No.  2873),  provides 
that  the  railroads  of  the  country  shall  be  divided  into  two  classes  — 
national  and  provincial.  All  lines  are  considered  national  when 
constructed  or  subsidized  by  the  national  government,  or  when  con- 
necting the  federal  capital  with  any  of  the  provinces  or  establishing 
communication  between  the  provinces  or  with  any  foreign  country. 
This  means  that  practically  all  railroads  of  any  importance  are 
classified  as  national.  The  granting  of  franchises  for  the  construction 
of  such  roads  and  the  control  over  them  are  vested  in  the  national 
government,  so  that  provincial  control  over  the  railroad  systems  of 
the  country  is  practically  excluded.  This  unity  of  control  has  been 
the  source  of  real  strength  in  securing  a  systematic  and  orderly 
growth  of  the  means  of  communication  of  the  republic.  It  has 
prevented  waste  in  the  duplication  of  lines  and  has  also  secured  the 
fulfillment  of  real  national  purposes  in  the  development  of  the  trans- 
portation system. 

The  Argentine  Republic  has  never  been  compelled  to  pass  through 
such  anarchical  conditions  as  prevailed  in  the  United  States  for  so 
long  a  period  in  all  matters  relating  to  railroad  development.  Fur- 
thermore, the  narrow  and  ofttimes  selfish  views  of  local  authorities 
have  been  completely  eliminated  in  the  development  of  the  transpor- 
tation system.  It  is  true  that  this  broad  interpretation  of  national 
powers  also  has  been  instrumental  in  further  emphasizing  the  sub- 
ordination of  the  provincial  governments  to  the  national  authorities. 

Furthermore,  the  powers  granted  in  section  16  are  so  broad  as  to 
give  1o  the  federal  government  complete  control  over  the  industrial 
development  of  the  country.  Its  action  is  not  limited  to  the  federal 
territories,  but  is  expressly  extended  over  the  provinces  for  the  pur- 
pose of  furthering  their  industrial  progress.  The  authority  of  the 
central  government  may  even  extend  beyond  matters  of  economic 
interest,  for  it  is  given  power  to  take  measures,  along  the  lines  above 


Functions  behceen  Federal  Government  and  Provinces  63- 

indicated,  to  promote  the  general  welfare  of  the  provinces.  It  will 
be  noted  that  this  clause  differs  from  the  "general  welfare"  clause 
of  the  constitution  of  the  United  States,  which  has  been  interpreted 
to  give  no  additional  powers  to  the  central  government,  but  simply 
states  the  general  purpose  for  which  the  express  and  implied  powers 
may  be  used. 

The  powers  granted  in  this  section,  in  conjunction  with  the 
authority  to  give  financial  aid  to  those  provinces  whose  resources 
are  insufficient  to  meet  ordinary  expenditures,  have  been  used  to 
justify  a  wide  extension  of  federal  authority  in  matters  of  purely 
local  concern.  In  almost  all  the  larger  cities  of  the  republic,  especially 
in  the  capitals  of  the  provinces,  the  federal  government  is  under- 
taking the  construction  of  drainage  systems,  water-supply,  and  other 
public  works  intended  to  improve  local  sanitary  conditions.  These 
public  works  are  financed  by  the  central  government,  through  the 
issue  of  special  sanitary  bonds  bearing  5  per  cent  interest  and  1  per 
cent  amortization.  The  income  from  these  works  is  pledged  to  pay 
this  interest  and  amortization.  In  effect,  therefore,  the  federal 
government  lends  its  credit  to  the  provinces,  undertakes  the  construc- 
tion of  the  works,  and  administers  them  until  the  bonds  have  been 
canceled,  when  they  are  to  be  turned  over  to  the  respective  provincial 
governments.  Up  to  December  31,  1906,  the  federal  government  had 
issued  sanitary  bonds  amounting  to  $5,280,000.  Some  idea  of  the  im- 
portance of  the  service  performed  in  this  respect  may  be  obtained 
by  passing  rapidly  in  review  the  work  now  in  progress  in  the  several 
provinces: 

(1)  In  the  city  of  Salta,  capital  of  the  province  of  the  same  name,  the 
national  government  has  provided  a  water-supply,  drainage  system,  sewage 
purification,  and  the  reclaiming  of  large  tracts  of  swamp-land  on  the  outskirts 
of  the  city.    The  cost  of  these  works  will  be  $704,460.24. 

(2)  In  the  city  of  San  Juan,  capital  of  the  province  of  San  Juan,  the 
national  government  has  constructed  the  water-works,  and  is  now  extending 
the  system  in  order  to  increase  the  volume  of  water  supplied  and  to  extend 
the  system  throughout  the  city.    The  cost  of  these  works  was  $254,029.60. 

(3)  In  the  city  of  San  Luis  the  national  government  constructed  during 
the  years  1901  and  1902  a  new  water-supply,  which  was  enlarged  during  the 
years  1903  and  1904.    The  cost  of  these  works  was  $122,631. 

(4)  In  1900  the  national  government  agreed  to  provide  the  city  of  Jujuy 
with  a  public  water-supply,  and  this  plan  was  carried  out  during  the  years 
1902  and  1903.  In  1904  the  system  was  considerably  extended  and  improved. 
The  outlay  was  $158,629.24. 

(5)  In  1901  the  federal  government  agreed  to  furnish  the  city  of  Santiago 
del  Estero  with  a  complete  system  of  water-supply,  for  which  the  outlay  was 
$282,859.28. 

(6)  In  the  same  year  (1901)  the  federal  government  agreed  to  provide 
the  city  of  La  Rioja  with  a  water-supply.  Up  to  December  31,  1906, 
$165,764.72  had  been  expended  on  these  works,  and  it  will  probably  require 
double  this  amount  to  complete  the  system. 

(7)  In  1903  the  request  of  the  city  of  Corrientes  for  a  public  water 


64  The  Federal  System  of  the  Argentine  Republic 

supply  was  complied  with.    Up  to  December  31,  1906,  S462.238.04  had  been 
expended  on  these  works. 

(8)  In  the  city  of  Mendoza  the  federal  government  is  executing  sanitary 
works  on  a  large  scale,  including  water-supply  and  drainage  systems.  Up 
to  December  31,  1906,  the  total  amount  expended  was  1693,189.20,  and  it 
will  require  at  least  an  equal  amount  to  complete  the  works. 

(9)  In  the  city  of  Catamarca  the  federal  government  has  restricted 
itself  to  improving  the  existing  water  system  at  a  cost  of  SS3, 366.80.  In 
1903  the  federal  government  agreed  to  further  extend  the  system  and  estab- 
lish an  electric-light  and  power  plant  at  a  cost  of  S183,081.36. 

(10)  In  the  city  of  Santa  Fe  the  federal  government  has  constructed 
a  water-supply  and  drainage  system  of  which  the  total  cost  will  be  about 
S850,000,  of  which  8736.474.64  had  been  expended  up  to  December  31,  1906. 

(11)  In  1903  the  federal  government  agreed  to  construct  a  drainage 
system  for  the  city  of  Parana  and  to  expend  8484,000  for  this  purpose. 

(12)  In  the  city  of  Cordoba  the  federal  government  has  recently  con- 
structed a  system  of  drainage  and  water-supply  at  a  cost  of  nearly 
$2,000,000. 

This  extension  of  federal  powers  is  not  regarded  with  alarm  by 
the  local  authorities.  In  fact,  the  central  government  is  constantly 
besieged  with  requests  to  undertake  local  works.  The  sanitary  con- 
dition of  the  provincial  capitals  is  being  greatly  improved  through 
these  efforts  of  the  national  government,  but  it  is  evident  that  the 
local  civic  life  of  the  provinces  suffers  by  reason  of  this  feeling  of 
dependence  on  national  aid. 

THE  CONSTITUTIONAL  POSITION  OF  THE  PROVINCES. 

In  order  to  understand  the  position  occupied  by  the  provinces 
in  the  political  system  of  Argentina,  it  is  necessary  to  bear  in 
mind  their  origin  and  the  part  they  played,  both  during  the  colonial 
period  and  during  the  early  years  of  the  republic.  The  royal  ordinances 
of  Charles  III  of  1782  and  the  supplementary  ordinance  of  1803, 
which  divided  the  vice-royalty  into  eight  intendencias,  constitute  the 
basis  of  the  present  system.1  Between  1S13  and  1820  further  sub- 
divisions occurred,  due  to  three  distinct  causes:  (1)  the  action  of 
the  early  national  revolutionary  assemblies,  one  of  which  created  the 
province  of  C6rdoba;  (2)  revolutionary  movements  caused  by  the 
desire  of  sections  of  existing  provinces  to  set  up  independent  pro- 
vincial governments,  as  in  the  case  of  the  province  of  La  Rioja; 
(3)  the  revolutionary  initiative  of  town  councils  bent  on  setting  up 
separate  provincial  governments,  as  in  the  case  of  Santa  Fe,  Santiago, 
San  Luis,  San  Juan,  and  Catamarca.  While  the  formation  of  new 
provinces  may  be  traceable  to  different  causes,  they  could  not  be 
definitely  constituted  as  such  until  recognized  by  the  national  gov- 
ernment.    This  recognition  was  extended  to  Entre  Rios,  Santa  F6, 

1  Gonzalez,  Manual  dc  la  Constitucion,  p.  55. 


Functions  between  Federal  Governvient  and  Provinces  65 

and  Corricntes  in  1814;  to  Santiago  del  Estero,  San  Juan,  La  Rioja, 
and  San  Luis  in  1820;  to  Catamarca  in  1821,  and  to  Jujuy  in  1831. 

Whatever  may  be  the  political  principles  which  the  founders  of  the 
Argentine  system  had  in  view  in  organizing  the  government,  the  his- 
torical development  was  totally  different  from  that  of  the  United  States. 
The  "Argentine  Nation,"  as  the  constitution  designates  the  political 
union,  was  not  formed  by  the  coming  together  of  a  group  of  sovereign 
states.  Social  unity  and  the  fundamentals  of  political  unity  were 
established  long  before  the  formation  of  the  provinces  which  now  con- 
stitute the  federal  union.  The  provinces  were  not  in  their  origin 
sovereign  states,  and  even  to-day  they  resemble  more  closely  adminis- 
trative subdivisions  than  separate  political  entities.  In  spite  of  the 
many  internal  dissensions  which  threw  the  country  into  a  condition 
of  political  anarchy  prior  to  the  dictatorship  of  Rosas  in  1829,  the 
nation  did  not  lose  its  sense  of  social  unity.  The  moral  and  ethnical 
bases  for  a  national  organization  were  never  destroyed. 

At  the  time  of  the  adoption  of  the  constitution  of  1853  the  prov- 
inces, the  union  of  which  forms  what  is  now  the  Argentine  Republic, 
were  organized  under  written  constitutions.  One  of  the  most  im- 
portant questions  that  presented  itself  to  the  constitutional  con- 
vention of  1852  was  the  plan  that  should  be  adopted  in  dealing  with 
these  existing  constitutions.  Alberdi,  whose  "bases"  exerted  so 
marked  an  influence  on  the  deliberations  of  the  convention,  pointed 
out  the  necessity  of  subordinating  all  of  these  provincial  consti- 
tutions to  the  principle  of  national  organization.  He  therefore 
advocated  that  the  national  constitution  be  first  framed  and  that 
the  provinces  be  compelled  to  adopt  new  instruments,  which  should 
be  submitted  to  the  national  congress  for  revision. 

This  plan  was  finally  adopted,  the  constitution  of  1853  providing 
as  follows: 

(1)  The  provincial  constitutions  shall  be  submitted  to  the  national 
congress  for  revision  before  publication  (art.  5). 

(2)  The  congress  shall  have  power  to  examine  the  provincial  constitu- 
tions, and  reject  such  as  are  not  in  harmony  with  the  principles  of  the  national 
constitution  (art.  64,  par.  28). 

(3)  Each  province  shall  frame  its  own  constitution  and  shall  submit  it 
to  the  congress  for  examination  before  putting  it  into  execution. 

In  accordance  with  these  provisions,  all  the  provinces  then  form- 
ing part  of  the  confederation  framed  new  constitutions,  which  were 
submitted  to  and  accepted  by  the  congress.  As  we  have  seen, 
the  refusal  of  the  province  of  Buenos  Aires  either  to  attend  the 
convention  of  1852  or  to  enter  into  the  union  left  pending  a  question 
vital  to  the  future  of  the  republic,  for  it  was  evident  that  no  vigorous 
political  fabric  could  be  built  up  without  the  inclusion  of  this,  the 


66  The  Federal  System  of  the  Argentine  Republic 

strategic  center  of  the  ancient  viceroyalty  and  its  most  powerful 
constituent. 

The  struggle  which  took  place  for  the  incorporation  of  Buenos 
Aires  into  the  union  centered  for  a  time  about  the  acceptance  of  the 
clauses  of  the  constitution  which  we  have  just  considered.  Buenos 
.Aires  was  firmly  opposed  to  any  plan  which  would  require  the  sub- 
mission of  her  constitution  to  a  national  assembly.  The  provincial 
convention  which  assembled  in  1860  for  the  purpose  of  examining 
the  national  constitution  and  of  proposing  amendments  thereto,  the 
acceptance  of  which  would  induce  Buenos  Aires  to  enter  the  union, 
proposed  the  elimination  from  the  national  constitution  of  all  clauses 
which  would  require  a  federal  revision  of  provincial  constitutions. 
This  change  was  accepted  by  the  national  convention  that  assembled 
in  Santa  Fe.  Under  the  constitution  as  at  present  in  force,  therefore, 
amendments  to  provincial  constitutions  may  be  made  without  sub- 
mitting them  to  the  national  congress.  This,  however,  does  not 
constitute  any  real  menace  to  the  unity  of  the  federal  system,  owing 
to  the  clause  of  the  national  constitution  declaring  its  provisions  to 
be  the  supreme  law  of  the  land  and  also  the  provision  requiring  the 
provincial  constitutions  to  conform  to  the  following  standards:  (a) 
that  the  system  of  government  contained  therein  be  representative 
and  republican;  (b)  that  the  provincial  constitutions  be  in  harmony 
with  the  principles,  declarations,  and  guarantees  contained  in  the 
federal  constitution;  (c)  that  the  provincial  constitutions  assure  the 
orderly  administration  of  justice;  (d)  that  they  provide  for  a  munici- 
pal system,  in  which  the  principle  of  local  self-government  shall  be 
recognized;    (e)  that  they  provide  for  a  system  of  primary  education. 

Although  the  Argentine  system  is  essentially  centralized,  as 
compared  with  that  of  the  United  States,  the  individual  provinces 
are  given  authority  to  enter  into  treaties  and  agreements  with  one 
another  for  the  administration  of  justice,  the  furtherance  of  economic 
interests,  and  the  execution  of  public  works  (art.  107).  The  consti- 
tution requires  that  the  national  congress  be  informed  of  such 
agreements,  but  does  not  state  that  their  validity  is  dependent  upon 
the  approval  of  the  central  government.  Several  Argentine  com- 
mentators '  have  held  that  the  power  of  the  congress  to  control  these 
agreements  is  implied,  but  this  question  still  remains  one  of  the 
unsettled  problems  of  Argentine  constitutional  law. 

The  provinces  have  made  but  little  use  of  the  powers  thus  granted. 
Instead  of  joint  provincial  action  in  the  construction  of  public  works 
or  the  performance  of  other  services,  the  tendency  is  to  appeal  to  the 
federal  government  whenever  local  resources  are  insufficient  to  carry 
out  a  project  for  local  improvement.  Even  in  those  cases  in  which 
provision  for  such  joint  provincial  action  has  been  made  in  the  pro- 

1  Joaquin  V.  Gonzulcz,  op.  cit.,  p.  7.'i2. 


Function*  between  Federal  Government  and  Provinces  G7 

vincial  constitutions,  no  action  in  furtherance  of  the  plan  has  been 
taken.  The  constitution  of  San  Juan,1  for  instance,  gives  power  to 
the  provincial  government  to  create  a  supreme  court  jointly  with 
one  or  more  neighboring  provinces,  but  no  steps  have  ever  been 
taken  in  this  direction. 

Under  article  104  of  the  federal  constitution,  the  provinces  enjoy- 
all  powers  not  granted  to  the  federal  government.  As  at  first  framed 
by  the  committee  of  the  constitutional  convention  of  1852,  this  clause 
gave  to  the  provinces  all  powers  not  expressly  granted  to  the  federal 
government.  In  the  final  draft,  however,  the  word  "expressly"  was 
eliminated,  thus  giving  to  the  federal  government  the  possibility  of 
a  far  wider  exercise  of  powers. 

It  is  a  fact  worthy  of  note  that  the  constitution  of  the  United 
States  reserves  either  to  the  states  or  to  the  people  all  powers  not 
granted  to  the  federal  government,  whereas  the  Argentine  constitu- 
tion reserves  to  the  provinces  all  powers  not  granted  to  the  central 
government  and  makes  no  mention  of  those  "reserved  to  the  people." 

The  constitutional  provisions  which  have  exerted  the  greatest  influ- 
ence on  the  relation  between  the  federal  government  and  the  prov- 
inces are  contained  in  articles  5  and  6  of  the  constitution,  as  follows : 

Art.  5.  Each  province  shall  adopt  its  own  constitution,  which  shall 
provide  for  the  administration  of  justice  in  its  own  territory,  its  municipal 
system,  and  primary  instruction,  such  constitution  to  be  framed  upon  the 
republican  representative  plan,  in  harmony  with  the  principles,  declarations, 
and  guaranties  of  the  national  constitution.  Upon  these  conditions,  the 
federal  government  shall  guarantee  to  each  province  the  enjoyment  and 
exercise  of  its  institutions. 

Art.  6.  The  federal  government  shall  have  the  right  to  intervene  in 
the  territory  of  the  provinces  in  order  to  guarantee  the  republican  form  of 
government  or  to  repel  foreign  invasion;  and  when  requested  by  the  con- 
stituted authorities,  to  maintain  them  in  power,  or  to  re-establish  them  if  they 
shall  have  been  deposed  by  sedition  or  by  invasion  from  another  province. 

The  interpretation  given  to  these  articles  and  the  effect  of  this 
interpretation  on  the  constitutional  position  of  the  provinces  will 
be  made  the  subject  of  more  detailed  study  in  the  next  chapter.  Suf- 
fice it  to  say  that  these  provisions  have  enabled  the  central  govern- 
ment to  place  the  provinces  in  a  condition  of  political  subordination 
which  has  contributed  more  than  any  other  factor  toward  retarding 
the  development  of  a  vigorous  local  political  life. 

In  considering  the  position  of  the  provinces  in  the  Argentine 
system  it  is  important  to  bear  in  mind  that  their  subordination  to 
the  central  government  has  been  further  affected  by  their  lack  of 
financial  resources  and  consequent  inability  fully  to  meet  the  require- 
ments of  the  public  administration.  We  have  had  occasion  to  point 
out  that  the  Argentine  constitution  gives  to  the  congress  the  power 

1  Article  119. 


68  The  Federal  System  of  the  Argentine  Republic 

to  grant  subsidies  to  those  provinces  whose  income  does  not  suffice 
for  the  ordinary  expenditures  of  the  budget.  This  has  opened  the 
door  to  the  widest  extension  of  federal  power,  owing  to  the  fact  that 
whenever  one  of  the  provinces  applies  to  the  federal  government  for 
aid  in  the  construction  of  some  public  work  or  for  the  improvement 
of  the  system  of  public  education,  the  control  over  such  public  work 
is  vested,  in  part  at  least,  in  the  central  government.  Thus  the 
federal  government  has  in  many  cases  been  able  to  extend  its  powers 
over  municipal  sanitation  and  other  matters  of  purely  local  jurisdiction. 


CHAPTER  VII. 
PRINCIPLES  AND  PRACTICE  OF  FEDERAL  INTERVENTION. 

We  now  come  to  the  consideration  of  two  constitutional  pro- 
visions which  have  been  not  only  a  source  of  endless  discussion 
among  Argentine  commentators,  but  also  have  given  rise  to  the 
widest  differences  of  opinion  in  the  Argentine  congress.  Article  5  of 
the  constitution  recites  the  standards  to  which  the  constitutions 
framed  by  the  several  provinces  shall  conform,  as  follows: 

"  Each  province  shall  adopt  its  own  constitution,  which  shall  provide  for 
the  administration  of  justice  in  its  own  territory,  its  municipal  system,  and 
primary  instruction,  such  constitution  to  be  framed  upon  the  republican 
representative  plan,  in  harmony  with  the  principles,  declarations,  and  guar- 
anties of  the  national  constitution.  Upon  these  conditions,  the  federal  gov- 
ernment shall  guarantee  to  each  province  the  enjoyment  and  exercise  of  its 
institutions." 

Owing  to  its  close  relation  to  article  6  of  the  federal  constitu- 
tion, these  two  clauses  are  usually  considered  together.  That  article 
provides: 

"The  federal  government  shall  have  the  right  to  intervene  in  the  territory 
of  the  provinces  in  order  to  guarantee  the  republican  form  of  government  or 
to  repel  foreign  invasion;  and  when  requested  by  the  constituted  authorities, 
to  maintain  them  in  power,  or  to  reestablish  them  if  they  shall  have  been 
deposed  by  sedition  or  by  invasion  from  another  province." 

It  is  apparent  at  a  glance  that  these  provisions  of  the  Argentine 
constitution  are  considerably  broader  than  anything  contained  in 
the  constitution  of  the  United  States.  The  provinces  are  protected 
not  only  against  foreign  invasion  and  domestic  violence,  as  well  as 
guaranteed  a  republican  form  of  government,  but  they  are  also 
protected  in  the  enjoyment  and  free  operation  of  their  local  in- 
stitutions. To  understand  the  full  import  of  article  5  it  is  important 
to  bear  in  mind  the  dangers  which  the  framers  of  the  Argentine 
constitution  endeavored  to  guard  against.  The  country  had  emerged 
from  a  long  period  of  internal  dissensions,  during  which  local  leaders, 
under  the  cloak  of  republican  forms,  had  assumed  dictatorial  powers. 
It  was  evident  that  unless  the  recurrence  of  these  conditions  could  be 
in  some  way  guarded  against,  the  economic  and  political  advance  of 
the  whole  country  would  be  seriously  threatened.  The  idea  ever 
present  to  the  minds  of  the  framers  was  that  the  guarantee  of  the 
outward  forms  of  republican  government  was  not  sufficient.  They 
therefore  inserted  a  provision  which  gives  to  the  federal  government 
the  power  to  assure  not  merely  the  form  but  the  substance  of 


70  The  Federal  System  of  the  Argentine  Republic 

republican  rule,  by  guaranteeing  that  these  institutions  should  not 
be  undermined  or  perverted.  It  is  true  that  subsequent  events  have 
shown  that  this  power  gives  to  the  federal  government  far-reaching 
influence  in  provincial  affairs,  and  has,  in  a  number  of  instances, 
enabled  the  central  authorities  to  take  refuge  behind  this  article,  in 
order  to  place  their  political  followers  in  power  in  those  provinces  in 
which  the  opposing  party  has  secured  control. 

In  order  fully  to  appreciate  the  relation  existing  between  the 
federal  government  and  the  provinces,  it  is  important  to  bear  in 
mind  that  the  present  provinces  of  the  republic  were  closely  con- 
solidated during  the  colonial  period  and  that  the  separatist  spirit 
which  prevailed  from  1820  to  1829  did  not  leave  a  deep  impress 
upon  the  essential  unity  of  political  thought  and  social  organization 
of  the  country.  This  fact  alone  would  serve  to  explain  the  power 
of  the  federal  government  over  the  provinces  even  in  the  absence  of 
specific  constitutional  provisions  justifying  the  exercise  of  such  power. 

The  history  of  article  6  reflects  with  great  clearness  the  dis- 
crepancy between  law  and  fact  in  the  constitutional  development  of 
the  republic.  In  the  draft  of  the  constitution  prepared  by  Alberdi, 
and  which  the  constitutional  convention  of  1852  used  as  a  basis  for 
its  labors,  the  right  of  intervention  of  the  federal  government  was 
given  the  widest  possible  recognition.    It  read  as  follows: 

"The  federal  government  may  of  its  own  initiative  intervene  in  the 
territory  of  the  provinces,  for  the  purpose  of  reestablishing  order  when 
menaced  by  sedition." 

In  the  convention,  the  particularistic  sentiment  of  the  provinces 
was  sufficiently  strong  to  secure  a  modification  which  did  not  in 
reality  diminish  the  powers  of  the  central  government.  As  adopted 
by  the  convention,  article  6  reads: 

"The  federal  government  shall  have  the  right  to  intervene  in  the  territory 
of  the  provinces  in  order  to  guarantee  the  republican  form  of  government  or 
to  repel  foreign  invasion;  and  when  requested  by  the  constituted  authorities, 
to  maintain  them  in  power,  or  to  reestablish  them  if  they  shall  have  been 
deposed  by  sedition  or  by  invasion  from  another  province. 

During  the  period  1853-1861,  this  provision  gave  rise  to  abuses 
of  authority  on  the  part  of  the  central  government.  Without  the 
slightest  justification,  and  merely  for  the  purpose  of  securing  control 
of  the  provinces,  provincial  governments  were  overthrown  by  federal 
order  and  new  governors  and  legislatures  more  in  harmony  with  the 
political  affiliations  of  the  president  were  placed  in  power.  During 
the  eight  years  in  which  this  provision  remained  in  force  there  were 
no  less  than  twenty-six  interventions,  the  most  notorious  of  which 
were  those  in  the  provinces  of  San  Juan  and  La  Rioja  in  1857.  In 
the  decree  dated  April  6,  1857,  authorizing  the  representative  of  the 
national  government,  Don  Nicanor  Molinas,  to  intervene  in  the  affairs 


Principles  and  Practice  of  Federal  Intervention  71 

of  these  provinces  for  the  purpose  of  "removing  the  obstacles  which 
have  prevented  the  organization  of  the  constitutional  authorities,"  he 
was  given  unlimited  authority  to  do  anything  he  might  deem  requisite 
to  fulfill  the  purposes  of  his  mission.1  In  the  constitutional  conven- 
tion of  1860,  the  question  of  amending  article  6  occupied  a  prominent 
place.  A  considerable  number  of  the  delegates  desired  to  adopt  the 
exact  phraseology  of  the  constitution  of  the  United  States  on  this  point, 
restricting  intervention  to  those  cases  in  which  the  state  authorities 
request  the  aid  of  the  federal  government  when  menaced  by  internal 
disorder  or  invasion  by  another  province. 

The  committee  to  which  the  question  was  referred  rejected  the 
idea  of  making  federal  intervention  conditional  upon  the  formal 
request  of  the  state  authorities.  In  proposing  the  amendment  to 
article  6,  the  report  of  the  committee  states:2 

"The  intervention  of  the  federal  government  in  the  provinces,  with  or 
without  request  on  the  part  of  the  provincial  authorities,  may  be  regarded 
either  as  a  duty  or  as  a  right.  In  the  former  case  it  is  an  obligation  arising 
out  of  the  guarantee  contained  in  article  5  of  the  constitution,  to  wit:  'The 
federal  government  guarantees  to  each  province  the  enjoyment  and  free 
exercise  of  its  institutions.' 

"In  the  latter  case  it  is  a  power  which  the  federal  government  exercises 
as  an  inherent  right;  first,  whenever  one  or  more  provinces  violate  their 
obligation  toward  the  union,  as,  for  instance,  if  they  were  to  attempt  to 
establish  a  monarchical  form  of  government  or  perpetuate  executive  power 
through  internal  violence  in  violation  of  all  democratic  principles;  or,  secondly, 
when  the  safety  of  the  nation  requires  such  intervention." 

The  committee  took  the  view  that  while  it  was  necessary  to 
preserve  the  power  of  the  central  government  to  intervene,  even 
without  the  request  of  the  provincial  authorities,  it  was  also  desir- 
able to  define  more  clearly  the  powers  of  the  federal  authorities  by 
indicating  on  the  one  hand  under  what  conditions  intervention  may 
take  place  without  request,  viz.,  to  guarantee  a  republican  form  of  gov- 
ernment and  to  repel  foreign  invasion,  and  in  what  cases  such  interven- 
tion can  take  place  only  upon  the  request  of  the  provincial  authorities, 
viz.,  to  maintain  or  reestablish  their  powers,  when  overthrown  by  sedi- 
tion or  by  invasion  from  another  province.3 

The  relation  between  article  6  as  thus  amended,  and  article  4, 
section  4,4  of  the  constitution  of  the  United  States  has  been  the 

1   Cf.  Urrutia.  Intervenciones  del  Gobierno  Federal,  p.  33,  Buenos  Aires,  1904. 
»  Cf.  M.  A.  Montes  de  Oca,  Derecho  Constitutional,  Vol.  I,  p.  301,  Buenos  Aires,  1S96.    Also 
see  Proceedings  of  the  Constitutional  Convention  of  1860. 

3  Art.  6.  The  federal  government  shall  have  the  right  to  intervene  for  the  preservation  in  the 

territory  of  the  provinces  of  the  republican  form  of  government  or  for  repelling  foreign 
invasion;  and  when  requested  by  the  provincial  authorities,  for  maintaining  them  in 
power,  or  reestablishing  them  if  deposed  by  sedition  or  by  invasion  from  another 
province. 

4  Art.  IV,  Sec.  4.     "The  United  States  shall  guarantee  to  every  state  in  this  union  a  repub- 

lican form  of  government  and  shall  protect  each  of  them  against  invasion;  and  on  appli- 
cation of  the  legislature,  or  of  the  executive  (when  the  legislature  can  not  be  convened) 
against  domestic  violence." 


72  The  Federal  System  of  the  Argentine  Republic 

subject  of  considerable  discussion  by  Argentine  commentators.1  In 
spite  of  striking  similarity  in  formulation,  the  differences  in  applica- 
tion in  the  American  and  Argentine  systems  are  fundamental  and 
far-reaching. 

It  is  evident  that  the  provision  of  article  4,  section  4,  of  the  con- 
stitution of  the  United  States  might  well  have  been  made  the  excuse 
for  as  wide  an  extension  of  federal  power  as  has  taken  place  in 
Argentina.  This  possibility  did  not  escape  the  notice  of  the  supporters 
of  states'  rights.  In  1S67  Reverdy  Johnson,  in  the  course  of  a  debate 
in  the  United  States  Senate,  said: 

"Does  it  [this  clause]  give  to  the  United  States  authority  to  interfere 
with  any  of  the  existing  rights  belonging  to  the  states  at  the  time  they 
adopted  the  constitution?  If  it  did,  then  everything  was  thrown  afloat; 
the  United  States  then,  by  its  congress,  is  to  become  a  great  convention 
not  only  to  deliberate  for  the  interests  and  safety  of  the  people  of  the  United 
States  but  from  what  they  may  from  time  to  time  believe  to  be  the  true 
interest  and  safety  of  the  people  of  each  state  in  the  management  of  its  own 
concerns." 

The  limited  use  that  has  been  made  of  the  clause  guaranteeing 
to  each  state  a  republican  form  of  government  has  not  been  due  to 
any  restrictions  upon  federal  power  imposed  by  the  courts.  On  the 
contrary,  in  the  case  of  Luther  vs.  Borden  (7  Howard,  42),  decided  in 
1849,  the  court  held  that  the  power  to  determine  which  is  the  legiti- 
mate government  of  a  state  is  a  political  rather  than  a  judicial  func- 
tion, and  the  decision  of  the  political  organs  of  the  government  (in 
this  case  the  congress)  is  binding  on  the  courts.  So  far  as  the  power 
of  the  federal  government  over  the  states  is  concerned,  this  authority 
to  determine  which  government  is  legitimate  carries  with  it  important 
consequences,  for  in  order  to  determine  whether  a  particular  govern- 
ment is  republican  or  not  the  congress  must  first  decide  which  is  the 
real  government  of  the  state.  The  guarantee  contained  in  article  4, 
section  4,  is  usually  invoked  when,  by  reason  of  violent  party  conflicts, 
each  party  has  set  up  a  government  which  it  claims  to  be  the  legiti- 
mate government  of  the  state.  In  such  cases  the  United  States 
supreme  court  has  held  that  the  decision  of  the  congress  as  to  which 
government  should  be  recognized  is  final  and  not  subject  to  review 
by  the  courts. 

This  power  is  further  increased  by  the  fact  that  the  courts  have 
steadily  refused  to  prescribe,  with  any  degree  of  detail,  the  standards 
to  which  a  government  must  conform  in  order  to  be  republican  in 
form.  Tlie  nearest  approach  to  such  a  definition  was  made  in  re 
Duncan  (139  U.  S.,  449),  in  which  the  court  said: 

"By  the  constitution,  :i  republican  form  of  government  is  guaranteed  to 
ev<  ry  state  in  the  union,  and  the  rtiHtingninhing  feature  of  that  form  is  the 

Cf.  Barrtfiuoro.      !    I  tnidao  S.  Zeballos,  in  Itevista  de  Historia  y  Dcrecho,   1908;    Luis  V. 
\  in  la,  Estudios  sobre  la  Constitution  National  Argentina,  Buenos  Aires,  1896. 


Principles  and  Practice  of  Federal  Intervention  73 


right  of  the  people  to  choose  their  own  officers  for  governmental  administra- 
tion, and  pass  their  own  laws  in  virtue  of  the  legislative  power  reposed  in 
representative  bodies,  whose  legitimate  acts  may  be  said  to  be  those  of  the 
people  themselves." 

It  will  readily  be  seen  that  the  powers  thus  vested  in  congress 
might  well  have  been  used  by  the  dominant  party  to  secure  political 
control  of  those  states  in  which  a  majority  could  not  be  secured  by 
legitimate  means.  The  reasons  for  the  self-control  shown  by  the 
congress  in  the  exercise  of  this  power  are  to  be  sought,  first,  in  the 
historical  circumstance  that  the  deeply  rooted  feeling  of  state  autonomy 
would  have  aroused  a  strong  movement  of  public  opinion  against  any 
such  use  of  power;  secondly,  the  law-abiding  sense  and  spirit  of 
legality  of  the  mass  of  the  people  would  have  condemned  any  attempts 
to  foment  those  local  disorders  which,  as  a  rule,  are  a  necessary  pre- 
liminary to  the  exercise  of  federal  intervention. 

That  portion  of  section  4  which  is  intended  to  protect  the  states 
against  domestic  violence  becomes  effective  in  the  American,  as  in 
the  Argentine  constitution,  only  upon  the  request  of  the  local  authori- 
ties. The  only  marked  differences  between  the  two  provisions  are: 
(1)  that  the  constitution  of  the  United  States  indicates  specific- 
ally the  authority  from  which  the  request  must  emanate,  viz.,  "on 
application  of  the  legislature,  or  of  the  executive  (when  the  legisla- 
ture can  not  be  convened),"  whereas  the  Argentine  constitution 
refers  in  general  terms  to  the  "provincial  authorities";  and  (2)  the 
constitution  of  the  United  States  provides  for  such  intervention  in 
order  to  protect  the  State  against  any  form  of  domestic  violence. 
The  Argentine  constitution  seems  to  have  solely  in  view  disturbances 
of  a  political  character,  for  it  authorizes  intervention  upon  request 
"for  maintaining  them  [the  provincial  authorities]  in  power,  or 
reestablishing  them  if  deposed  by  sedition  or  by  invasion  from  another 
province." 

In  spite  of  the  broader  formulation  of  this  clause  in  the  constitu- 
tion of  the  United  States,  the  use  made  thereof  has  been  far  more 
limited  than  in  the  Argentine  system,  owing  mainly  to  the  fact  that 
under  our  system  of  government  the  established  practice  with  ref- 
erence to  the  militia  is  quite  different  from  that  which  obtains  in 
Argentina,  although  the  constitutional  provisions  relating  to  this 
subject  are  almost  identical.1  The  congress  of  the  United  States  is 
given  power  "to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  union,  suppress  insurrections,  and  repel  invasions,"  and 
to  "provide  for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of 
the  United  States;  reserving  to  the  states  respectively  the  appointment 

1  Compare  chap.  4,  art.  67.  par.  24,  of  the  Argentine  constitution  with  art.  1,  sec.  8,  pars.  15 
and  16,  of  the  constitution  of  the  United  States. 


74  The  Federal  System  of  the  Argentine  Republic 

of  the  officers,  and  the  authority  of  training  the  militia  according  to 
the  discipline  prescribed  by  Congress." 

Although  these  provisions  reserve  wide  powers  to  the  states,  they 
aroused  violent  opposition  in  the  constitutional  convention.  It  was 
feared  that  the  powers  vested  in  the  congress  would  place  the  states 
at  the  mere}'  of  the  federal  government.  These  fears  have  proved 
totally  unfounded,  for  while  congress  has  prescribed  a  uniform 
system  for  the  organization  of  the  militia,  the  states  have  main- 
tained the  immediate  control  over  their  respective  contingents  which 
may  at  any  time  be  called  forth  by  the  state  authorities  for  the 
purpose  of  suppressing  domestic  violence.  In  actual  practice  the 
federal  government  has  shown  itself  extremely  reluctant  to  respond 
to  the  request  of  the  state  authorities.  The  recent  formation  of  a 
great  national  army  and  the  incorporation  of  the  militia  of  the  sev- 
eral states  into  this  arm}'  has  temporarily  changed  this  situation. 

An  instance,  which  occurred  in  the  state  of  Nevada,  clearly 
illustrates  this  attitude  of  the  national  government.  In  November 
1907  the  governor  of  Nevada,  fearing  that  the  then  existing  strike  of 
miners  might  lead  to  serious  disturbances,  called  upon  the  president 
for  federal  troops.  These  were  promptly  dispatched.  Ten  days 
after  the  arrival  of  the  troops  the  president  sent  word  to  Governor 
Sparks  that  inasmuch  as  no  disturbance  had  occurred  he  had  decided 
to  order  the  recall  of  the  federal  troops.  In  this  telegram  :  the  presi- 
dent called  the  governor's  attention  to  the  fact  that  the  policing 
of  the  territory  of  the  state  was  the  duty  of  the  local  authorities.  In 
a  subsequent  telegram,  dated  December  19,  1907,  the  president  again 
emphasized  the  duties  of  the  state  government  and  called  attention 
to  the  fact  that  the  national  government  can  not  permit  a  state  to 
avail  itself  of  federal  aid  in  order  to  escape  its  manifest  obligation 
to  preserve  domestic  order. 

The  use  of  federal  troops  for  the  purpose  of  restoring  order  in 
Chicago  at  the  time  of  the  great  railway  strike  in  1893,  in  spite  of 
the  protests  of  the  then  governor  of  the  State,  was  justified  by  the 
president  as  a  means  of  protecting  the  national  government  in  the 
exercise  of  one  of  its  most  important  functions,  viz.,  the  maintenance 
of  the  national  postal  service.  The  railway  lines  passing  through 
Chicago  were  construed  as  integral  parts  of  the  post-roads  of  the 
United  States,  and  to  keep  these  roads  open  for  traffic  was  considered 
one  of  the  obligations  of  the  national  government.  While  technically, 
therefore,  this  case  was  not  regarded  by  the  president  as  belonging 
in  the  class  of  "interventions,"  it  was  evident  to  everyone  that  the 
maintenance  of  the  postal  service  and  the  free  transit  over  the  post- 
roads  were  the  constitutional  principles  which  the  federal  government 
invoked  in  order  to  justify  its  determination  to  put  a  stop  to  the 
destruction  of  property  in  the  Chicago  railway  yards. 

1  Cf.  telegram  dated  December  17,   1907,  of  President  Roosevelt  to  Governor  Sparks. 


Principles  and  Practice  of  Federal  Intervention  75 

In  the  Argentine  system  the  application  of  the  articles  relating  to 
the  militia  has  been  totally  different  from  that  which  has  obtained 
in  the  United  States.  The  organization  of  a  standing  army  and  the 
establishment  of  the  principle  of  universal  military  service  have 
prevented  the  development  of  anything  corresponding  to  the  local 
militia  in  the  United  States.  The  entire  armed  force  of  the  republic, 
with  the  exception  of  the  local  police,  is  under  the  immediate  direc- 
tion of  the  national  authorities.  The  provincial  authorities  are, 
therefore,  helpless  when  confronted  by  any  emergency  arising  out  of 
local  disorders.  This  condition  of  dependence  has  been  exploited 
to  the  utmost  by  the  national  government  and  has  contributed  more 
than  any  other  factor  in  enabling  the  national  executive  to  secure 
political  control  over  the  provincial  governments. 

It  is  important  to  examine  in  detail  some  of  the  typical  instances 
of  intervention,  for  they  illustrate  more  clearly  than  any  other  phase 
of  the  constitutional  practice  of  the  country  the  relation  of  the 
provinces  to  the  central  government. 

As  has  already  been  pointed  out,  the  constitution  of  1853  (art.  6) 
gave  to  the  national  government  the  power  to  intervene,  upon  or 
without  the  application  of  the  provincial  authorities,  for  the  sole 
purpose  of  establishing  order  when  menaced  by  sedition  or  to  guar- 
antee national  safety  when  menaced  by  a  foreign  attack  or  invasion. 
The  most  typical  case  of  intervention  under  this  clause  was  under- 
taken in  1857  in  the  province  of  San  Juan.  Although  the  provincial 
authorities  were  violently  opposed  to  such  intervention  and  there 
were  no  indications  of  disturbances  menacing  the  public  order,  the 
executive  by  decree  appointed  a  federal  commissioner  to  take  charge 
of  the  government  of  the  province,  and  even  went  so  far  as  to  author- 
ize him  to  declare  martial  law.1 

The  use  thus  made  of  the  power  of  the  central  government  resulted 
in  placing  its  political  sympathizers  in  control  of  the  province.  The 
success  of  the  San  Juan  experiment  immediately  led  to  interventions 
in  the  provinces  of  Rioja,  Jujuy,  Mendoza,  Santiago  del  Estero, 
Entre  Rfos,  Corrientes,  Santa  Fe,  C6rdoba,  and  San  Luis. 

The  constitutional  amendment  of  1860,  in  limiting  the  scope  of 
federal  intervention,  without  specific  request  on  the  part  of  the  pro- 
vincial authorities,  to  the  guarantee  of  a  republican  form  of  govern- 
ment and  for  the  repelling  of  foreign  invasion,  was  intended  to  set 
more  definite  limits  to  federal  power.  The  interventions  that  have 
taken  place  since  the  passage  of  this  amendment  indicate  that  it  has 
failed  of  its  purpose,  for  where  article  6  can  not  be  invoked  to  justify 
federal  encroachments,  article  5  has  served  the  purposes  of  the 
national  government.  Furthermore,  as  we  shall  have  occasion  to 
see  in  examining  a  number  of  the  more  recent  instances  of  "inter- 

1   Urrutia,  Intervenciones  del  Gobierno  Federal,  p.  33,  decrees  of  April  6  and  October  15,  1857. 


76  The  Federal  System  of  the  Argentine  Republic 

vention,  the  interpretation,  by  both  legislative  and  executive  branches 
of  the  government,  of  the  guarantee  of  a  republican  form  of  govern- 
ment, has  been  such  as  to  make  intervention  possible  whenever  the 
party  in  power  in  the  federal  government  deems  it  likely  that  thereby 
their  hold  on  the  provincial  governments  will  be  strengthened. 

The  established  practice  in  the  Argentine  system  is  that  each 
intervention  must  be  provided  for  by  special  act  of  congress.  'When 
congress  is  not  in  session  the  president  may  decree  such  intervention, 
submitting  the  same  for  the  approval  of  congress  at  its  next  session. 
Such  approval  or  disapproval  has  little  or  no  value,  however,  inasmuch 
as  the  purposes  of  such  intervention  are,  as  a  rule,  full}-  accomplished 
before  the  convening  of  congress.  When,  therefore,  there  is  a  lack  of 
political  harmony  between  the  president  and  congress,  and  the  former 
desires  to  secure  a  better  hold  on  the  provincial  political  situation, 
interventions  are  decreed  during  the  recess  of  congress.  If,  however, 
such  opposition  exists,  as  was  the  case  in  1907,  congress  is  loath  to 
adjourn  for  fear  of  the  extension  of  executive  influence  through  the 
process  of  federal  interventions  decreed  by  the  executive.  The  dead- 
lock between  the  president  and  congress  which  occurred  in  January 
1907,  and  which  was  brought  to  a  climax  by  the  executive  decree 
of  January  25,  1907,  declaring  the  congress  adjourned  sine  die,  was 
caused  in  part  by  the  desire  of  congress  to  remain  in  session  until  the 
opening  of  the  next  regular  session,  in  order  to  prevent  the  president 
from  undertaking  federal  interventions  in  certain  provinces,  notably 
Corrientes,  and  thus  strengthening  his  political  influence. 

Of  the  interventions  occurring  since  the  amendment  of  the  federal 
constitution  in  1S60 '  I  have  selected  those  which  either  took  place 
or  were  contemplated,  in  San  Juan,  Salta,  Mendoza,  San  Luis,  and 
Corrientes,  owing  to  the  fact  that  it  was  my  good  fortune  to  be  in 
Argentina  in  1906,  1907,  and  1908,  at  the  time  of  these  interven- 
tions and  I  was  therefore  able  to  study  the  political  as  well  as  the 
constitutional  aspects  of  the  question.  The  most  typical  case  — 
the  intervention  in  the  province  of  San  Juan  —  is  made  the  subject 
of  detailed  study  in  the  next  chapter. 

In  the  first  two  instances  to  which  I  wish  to  refer,  intervention 
did  not  actually  take  place,  but  the  failure  of  the  president  to  carry 
out  his  plan  illustrates  an  important  aspect  of  political  practice  in 
the  Argentine  Republic. 

During  the  course  of  the  }*ear  1906,  the  president  received  from 
the  province  of  Mendoza  three  requests  for  intervention: 

(1)  From  the  provincial  chamber  of  deputies,  which  requested 
such  intervention  "for  the  purpose  of  guaranteeing  the  republican 
form  of  government,  which  is  menaced  by  the  undermining  of  the 

'  See  a  government  publication  entitled  "  Intcrvencioncs  del  Gobicrno  Federal  en  las  Proviucias," 
by  Manuel  Alberto  Urnitia,  2  vols.,  Buenos  Aires,  1904. 


Principles  and  Practice  of  Federal  Intervention  77 

electoral  system  by  the  violation  of  the  constitutional  requirements 
regulating  the  formation  of  the  electoral  registry,  and  by  the  dis- 
repute into  which  the  judicial  branch  of  the  provincial  government 
has  fallen." 

(2)  From  the  chief  justice  of  the  supreme  court  of  the  province, 
who  based  his  request  on  the  "necessity  of  guaranteeing  the  free 
exercise  of  the  functions  intrusted  to  him." 

(3)  From  a  number  of  members  of  the  legislature  and  other 
citizens,  who  appealed  to  the  national  government  to  guarantee  to 
them  the  untrammeled  exercise  of  their  local  political  and  civil  rights. 

In  October  1906  the  president  sent  a  federal  commissioner  to  Men- 
doza  to  inquire  into  the  local  situation  and  to  report  to  him  as  to 
whether  the  complaints  thus  filed  were  well  founded.  On  November 
12  the  commissioner  submitted  his  report.  He  first  undertook  an 
examination  of  the  judicial  system  of  the  province.  After  entering 
upon  a  severe  criticism  of  the  defects  of  the  judicial  organization  of 
the  province,  he  arrived  at  the  conclusion  that  these  defects  did  not 
furnish  a  justification  for  federal  intervention. 

The  petition  of  the  chief  justice  of  the  supreme  court  was  based 
on  the  fact  that  he  had  been  deprived  of  the  presidency  of  the  electoral 
revision  commission.  An  analysis  of  the  charge  led  the  commissioner 
to  the  conclusion  that  this  did  not  furnish  a  justification  for  federal 
intervention.  The  examination  of  the  operation  of  the  electoral 
system  showed  the  existence  of  certain  defects  in  the  formation  of 
the  registry  rolls,  but  not  of  sufficient  importance,  in  the  view  of  the 
commissioner,  to  justify  intervention. 

After  rejecting  the  specific  grounds  for  intervention  upon  which 
the  requisitions  were  based,  the  commissioner  proceeded  to  point 
out  that  in  the  province  of  Mendoza  the  government  had  been  in 
the  habit  of  giving  its  support  to  official  candidates  and  using  the 
influence  of  the  administration  to  secure  the  election  of  these  can- 
didates. He  regarded  this  practice  as  unrepublican  and  sufficient 
ground  for  intervention  for  the  purpose  of  guaranteeing  the  republican 
form  of  government.  In  pursuance  of  this  recommendation,  the 
president  sent  a  special  message  to  congress  proposing  intervention 
in  the  province  of  Mendoza.  In  the  national  chamber  of  deputies 
the  opposition  to  the  president  had  assumed  formidable  proportions 
and  it  was  feared  that  federal  intervention  would  enable  him  to 
secure  the  election  of  one  of  his  personal  supporters  as  governor  of 
the  province.     The  bill  submitted  was,  therefore,  rejected. 

If  the  support  of  candidates  for  office  by  the  provincial  adminis- 
tration is  to  be  regarded  as  undermining  the  republican  form  of 
government  and  therefore  justifying  the  intervention  of  the  federal 
government  to  take  charge  of  the  provincial  elections,  it  is  evident 
that  the  entire  responsibility  for  the  integrity  of  political  life  in  the 


78  The  Federal  System  of  the  Argentine  Republic 

provinces  is  shifted  to  the  federal  government.  Independently  of 
the  stretching  of  the  constitutional  provision  involved  in  this  interpreta- 
tion, and  taking  for  granted  that  the  federal  government  in  every  case 
is  actuated  by  the  highest  motives,  the  incalculable  harm  done  to  the 
institutional  development  of  the  provinces  is  at  once  apparent. 

In  November  of  the  same  year  (1906)  the  Argentine  senate  adopted 
a  resolution  requesting  the  president  to  send  a  commissioner  to  the 
province  of  Salta  for  the  purpose  of  "ascertaining  the  conditions 
under  which  the  suffrage  was  there  being  exercised." 

On  December  12  the  commissioner  submitted  his  report,  in  which 
he  recommended  that  the  federal  government  intervene  in  the  province 
of  Salta  on  the  following  grounds:  (1)  the  absence  of  an  election  law 
and  the  failure  to  prepare  a  registry  of  voters;  (2)  the  failure  of  the 
province  to  put  into  practice  the  provision  of  the  provincial  con- 
stitution providing  for  proportional  representation;  (3)  the  violation 
of  the  principle  of  the  separation  of  powers  through  the  usurpation 
of  judicial  powers  by  the  executive,  in  declaring  unconstitutional 
certain  laws  relating  to  local  government. 

During  the  progress  of  this  investigation  an  agreement  was  reached 
between  the  governor  and  the  president  with  reference  to  the  candi- 
date for  the  governorship  at  the  approaching  election.  The  result 
was  that  the  report  was  sent  to  congress  without  any  recommendation 
from  the  executive,  and  no  further  attempt  was  made  to  carry  out 
the  recommendation  of  the  commissioner. 

The  federal  intervention  in  the  province  of  San  Luis  in  1907  Was 
due  to  an  insurrectionary  movement  which  occurred  on  the  eve  of 
the  inauguration  of  a  newly  elected  governor.  In  fact,  this  was  the 
main  purpose  of  the  insurrection.  It  was  thought  that  federal  inter- 
vention thus  secured  would  lead  to  new  elections  and  enable  the 
opposition  party  to  place  its  candidate  in  power.  A  federal  commis- 
sioner was  immediately  appointed  to  intervene  in  the  affairs  of  the 
province  ' '  for  the  purpose  of  establishing  public  order,  undermined  by 
sedition,  and  to  assure  the  free  operation  of  local  political  institutions 
at  present  made  impossible  by  acts  of  violence."  After  an  examina- 
tion of  the  local  situation,  the  commissioner  issued  a  decree  ordering  the 
installation  of  the  governor-elect.  It  is  interesting  to  note  the  word- 
ing of  the  closing  paragraph  of  this  decree,  which  reads  as  follows: 

"In  pursuance  of  the  instructions  of  the  federal  executive,  the  federal 
commissioner  hereby  convenes  the  provincial  legislature  to  assemble  on 
Tuesday,  September  17,  in  order  to  administer  the  oath  of  office  to  the 
governor-elect,  Dr.  Esteban  P.  Adaro." 

Thus,  because  of  a  disturbance  which  did  not  assume  greater 
proportions  than  a  local  riot,  the  federal  government  assumed  com- 
mand of  the  affairs  of  the  province,  and  after  restoring  order  formally 
installed  the  governor-elect. 


Principles  and  Practice  of  Federal  Intervention  7!) 

The  next  instance  of  federal  intervention  to  which  some  reference 
must  be  made  occurred  in  the  province  of  Corrientes  in  October  1907. 
The  case  presents  peculiar  interest  because  of  the  extraordinary 
procedure  that  was  followed.  Throughout  the  year  1907  persistent 
rumors  were  afloat  that  a  revolution  was  about  to  break  out  in 
Corrientes  in  order  to  depose  the  then  governor,  Juan  E.  Martinez. 
In  September  the  president  sent  a  confidential  agent  to  the  capital 
of  the  province,  charged  with  the  duty  of  trying  to  bring  about  an 
agreement  between  the  provincial  government  and  the  opposition. 
His  efforts  in  this  direction  were  unsuccessful.  Congress  not  being 
in  session,  the  president,  on  October  11,  issued  a  decree  ordering 
federal  intervention  in  the  province  of  Corrientes  "for  the  sole  purpose 
of  organizing  the  provincial  legislature."  The  federal  commissioner, 
Senator  Eugenio  Puccio  (appointed  after  the  resignation  of  the 
commissioner  first  appointed,  Dr.  Dimet),  immediately  assumed  full 
authority  in  the  province,  directing  the  disarming  of  all  local  forces, 
taking  command  of  the  police,  and  supplanting  both  the  legislative 
and  executive  authorities  of  the  province.  The  commissioner  then 
ordered  the  formation  of  new  registry  rolls,  the  selection  of  judges  of 
election,  and  other  measures  preparatory  to  the  elections  for  members 
of  the  provincial  legislature. 

While  the  execution  of  these  measures  was  in  progress  there 
occurred  a  most  extraordinary  proceeding,  which  indicates  the  far- 
reaching  powers  exercised  by  the  federal  government  in  the  provinces 
during  these  "interventions."  According  to  the  constitution  and 
laws  of  the  province,  but  one-third  of  the  members  of  the  legislature 
was  to  be  elected.  Under  the  terms  of  a  special  agreement  between 
the  commissioner  and  the  members  of  the  legislature,  it  was  arranged 
that  all  the  members  of  the  legislature  should  resign,  thus  enabling 
the  federal  commissioner  to  order  a  complete  renewal  of  both  houses. 
Under  his  supervision  this  was  done.  Immediately  after  the  holding 
of  elections  and  the  installation  of  the  new  legislature,  the  federal 
commissioner  decided  to  reinstall  the  governor.  In  pursuance  of 
this  purpose  a  decree  was  issued  on  April  22,  1908,  by  which  the 
following  day  (April  23)  was  designated  as  the  date  for  the  installation 
of  the  governor.  A  few  hours  after  the  issuance  of  this  decree  the 
commissioner  received  a  communication  from  the  provincial  chamber 
of  deputies,  informing  him  that  proceedings  for  the  impeachment 
of  the  governor  had  been  instituted  and  that  his  suspension,  pending 
such  proceedings,  had  been  voted. 

In  view  of  this  turn  of  affairs,  and  owing  to  the  fact  that  no 
lieutenant-governor  had  been  elected  in  the  province,  the  commis- 
sioner revoked  his  decree  of  April  22  and  issued  a  new  decree,  placing 
the  executive  authority  in  the  hands  of  the  presiding  officer  of 
the  provincial  senate.     The  impeachment  proceedings  thus  instituted 


80  The  Federal  System  of  the  Argentine  Republic 

resulted,  as  was  expected,  in  the  governor's  removal  from  office  and 
in  the  ordering  of  new  elections. 

It  is  hardly  necessary  to  add  that  beneath  this  appearance  of 
legality,  definite  political  purposes  were  hidden.  The  case  is  of 
special  interest  because  it  indicates  that  the  interpretation  of  the 
constitutional  duty  put  upon  the  national  authorities  to  "assure  to 
each  province  the  free  exercise  and  enjoyment  of  its  local  political 
institutions"  has  given  to  the  central  government  far-reaching  influence 
over  the  provinces. 

It  is  true  that  if  the  national  government  were  always  actuated 
by  the  highest  motives,  this  provision,  together  with  the  clause 
guaranteeing  to  each  province  a  republican  form  of  government, 
might  serve  to  give  stability  to  the  political  system  of  the  republic 
through  the  prompt  suppression  of  any  local  disturbances  and  the 
discouragement  of  any  attempt  on  the  part  of  disgruntled  minorities 
to  conspire  against  the  constituted  authorities.  Such  disinterested 
interpretation  can  not  always  be  expected.  The  absence  of  national 
party  organizations,  the  dependence  of  the  president  on  the  support 
of  the  provincial  governors  and  on  the  possibility  of  securing  through 
their  influence  the  election  of  senators  and  deputies  in  harmony  with 
his  policj',  constitute  a  real  temptation  to  use  "intervention"  for  the 
purpose  of  strengthening  the  political  position  of  the  national  executive. 

The  absence  of  an  organized  public  opinion,  upon  which  the 
president  may  depend  in  the  execution  of  his  policies,  makes  it 
essential  that  he  should  have  the  cooperation  of  the  political  leaders 
of  the  provinces.  Without  such  support  he  soon  finds  himself  con- 
fronted, not  only  by  a  combination  of  hostile  provincial  governors, 
but  also  by  a  hostile  congress.  Several  times  in  the  history  of  the 
country  the  president  has  been  compelled  to  resign  because  of  such 
opposition. 

It  is  evident  that  where  personal  political  interests  of  such  vital 
import  are  involved  a  disinterested  constitutional  interpretation  is 
almost  if  not  quite  precluded.  The  history  of  the  long  series  of 
interventions,  beginning  with  that  in  Tucumdn  in  1853  and  ending 
with  the  more  recent  instance  of  Corrientes,  clearly  demonstrates  that 
while,  superficially  viewed,  these  interventions  seem  to  be  a  guarantee 
of  the  maintenance  of  order  in  the  provinces,  their  real  influence  is 
quite  the  opposite.  The  possibility  of  securing  federal  intervention 
is  a  constant  temptation  to  the  minority  party  to  plan  revolutions 
and  to  provoke  armed  disturbances.  This  fact  alone  exerts  a  most 
unfortunate  influence  on  the  political  life  of  the  provinces.  The 
line  of  least  resistance  for  a  group  of  political  leaders  opposed  to  the 
governor  is  to  cultivate  friendly  relations  with  the  president  of  the 
republic  and  secure  some  assurance  of  support.  This  support  once 
secured,  it  is  comparatively  easy  to  secure  federal  intervention  under 


Principles  and  Practice  of  Federal  Intervention  81 

whose  patronage  the  party  assured  of  the  president's  support  is 
certain  to  triumph. 

Thus  the  center  of  political  responsibility  is  shifted  from  the 
province,  where  it  properly  belongs,  to  the  federal  capital,  Buenos 
Aires.  Minority  parties  in  the  provinces,  instead  of  conducting  a 
systematic  campaign  in  order  to  increase  their  following  with  the 
people,  prefer  to  treat  with  the  federal  authorities  for  the  purpose  of 
securing  control  of  the  machinery  of  government. 

Much  has  been  said  and  written  on  the  possibility  of  developing 
in  the  provinces  a  more  independent  and  distinctive  local  life.  With 
the  increase  in  population  and  the  development  of  natural  resources, 
they  will  be  assured  of  a  more  independent  economic  existence.  The 
future  of  their  political  life  is  far  more  difficult  to  foresee.  As  careful 
a  student  of  Argentine  affairs  as  Dr.  Rivarola  l  advocates  the  con- 
stitutional recognition  of  what  he  considers  a  condition  of  fact,  viz., 
the  suppression  of  the  provinces  as  independent  constitutional  units 
and  their  reorganization  as  administrative  subdivisions  of  an  unified 
state.  The  difficulties  involved  in  any  such  change  we  have  had 
occasion  to  examine.2 

Viewing  the  situation  in  the  light  of  the  constitutional  develop- 
ment of  Argentina  during  the  last  fifty  years,  one  is  forced  to  the 
conclusion  that  no  change  can  be  expected  until  the  civic  interest 
of  the  masses  in  the  provinces  has  been  aroused.  The  large  foreign 
element  in  many  of  the  provinces,  the  high  percentage  of  illiteracy 
in  others,  and  the  absence  in  all  of  traditions  and  habits  of  partici- 
pation in  public  affairs,  have  until  recently  placed  the  management 
of  provincial  political  affairs  in  the  hands  of  a  small  group  of  leaders, 
most  of  whom  are  usually  resident  in  the  federal  capital,  either  as 
senators  or  deputies.  Of  late  years  there  have  been  unmistakable 
indications  of  a  growing  determination  on  the  part  of  the  people  to 
manage  their  own  political  affairs.  The  rapid  progress  made  by 
popular  education  in  Argentina,  together  with  the  constantly  improv- 
ing economic  condition  of  the  working  classes,  has  developed  a 
desire  for  more  active  participation  in  public  affairs.  Furthermore, 
the  electoral  law,  which  provides  penalties  for  abstention  from  voting, 
has  stimulated  participation  in  elections.  All  these  influences  have 
served  the  further  purpose  of  developing  a  better  organized  public 
opinion,  which  is  making  itself  felt  in  establishing  more  effective 
control  over  the  administration,  both  national  and  provincial. 

1  Del  Regimen  Federativo  al  Unitario,  Buenos  Aires,  1908.  2  See  Chapter  I. 


CHAPTER  VIII. 

A  TYPICAL  CASE  OF  FEDERAL   INTERVENTION. 

The  exercise  of  the  power  of  "intervention"  in  the  internal  affairs 
of  the  provinces  constitutes  so  important  a  factor  in  the  proper  com- 
prehension of  the  Argentine  federal  system  that  it  is  necessary  to 
examine  in  detail  at  least  one  typical  instance.  I  have  selected  the 
federal  intervention  in  the  province  of  San  Juan,  which  took  place  in 
February  1907,  not  only  because  it  illustrates  so  clearly  the  con- 
stitutional and  political  principles  involved,  but  also  because  I  hap- 
pened to  be  in  that  section  of  .Argentina  when  this  intervention  was 
undertaken  and  was  able,  therefore,  to  make  a  detailed  study  of  the 
measures  adopted  by  the  federal  government. 

During  the  early  hours  of  the  morning  of  February  7,  1907,  a  group 
of  revolutionists  under  the  command  of  Carlos  Sarmiento,  a  retired 
colonel  of  the  regular  army,  attacked  the  capitol  building,  the  police 
barracks,  and  the  quarters  of  the  prison  guard.  After  several  hours  of 
fighting,  during  which  the  revolutionists  took  possession  of  the  capitol 
building,  and  were  about  to  storm  the  police  and  prison  barracks,  a 
truce  was  agreed  upon  which  resulted  in  an  agreement  between  the 
local  authorities  and  the  revolutionists,  couched  in  the  following  terms: 

"San  Juan,  February  7,  1907.  —  After  five  hours  of  combat  between 
the  revolutionary  forces  and  the  government  of  the  province,  and  with  a 
view  to  avoiding  unnecessary  shedding  of  blood,  and,  furthermore,  in  view 
of  the  fact  that  the  government  finds  itself  deprived  of  the  means  of  attend- 
ing its  wounded,  the  government  hereby  agrees  to  surrender  to  the  revolu- 
tionists the  police  and  prison  barracks,  with  their  respective  arms  and 
ammunition.  The  governor,  his  ministers,  the  chief  of  police,  government 
employees,  and  all  citizens  who  participated  in  the  defense  of  the  government 
are  hereby  assured  of  personal  protection  by  the  revolutionary  junta."  l 

The  president  of  the  republic,  Figueroa  Alcorta,  was  at  this  time 
absent  from  Buenos  Aires,  and  the  president  of  the  senate,  Benito 
Villanueva,  was  acting  president.  He  immediately  called  together 
the  members  of  the  cabinet.  Federal  intervention  was  at  once  deter- 
mined upon,  and  the  following  decree  was  promulgated: 

"In  view  of  the  occurrences  in  the  province  of  San  Juan,  and  in  accord- 
ance with  articles  5  and  6  of  the  national  constitution,  the  provisional 
president  of  the  senate,  at  present  invested  with  the  executive  power,  decrees, 
with  the  approval  of  the  cabinet:  The  province  of  San  Juan  is  declared  in  a 
state  of  'intervention.'     Lieutenant  Colonel  Ramon  Gonzalez,  in  command 

*  This  document  was  signed  by  the  revolutionary  junta  on  behalf  of  the  revolutionists,  and  by 
the  minister  of  government  and  the  representatives  of  the  governor,  Victorino  Orteza  and 
Ventura  Lloveras. 

83 


84  The  Federal  System  of  the  Argentine  Republic 

of  the  Fourth  Infantry  Battalion,  is  hereby  appointed  provisional  chief  of 
police.  Until  the  federal  commissioner  in  charge  of  the  intervention  is 
appointed,  the  minister  of  the  interior  will  give  instructions  to  the  chief  of 
police,  above  designated. 

"At  its  next  session  the  national  congress  shall  be  informed  of  this 
decree."     (See  article  6  as  given  in  Appendix  B,  page  138.) 

Prior  to  the  issuance  of  this  decree,  the  deposed  governor,  Manuel 
J.  Godoy.  telegraphed  to  the  minister  of  the  interior,  requesting  the 
intervention  of  the  national  government  for  the  purpose  of  reestablish- 
ing his  authority  in  accordance  with  article  6  of  the  constitution, 
which  gives  to  the  federal  government  power  to  intervene  in  the 
provinces,  "for  the  preservation  in  the  territory  of  the  provinces  of 
the  republican  form  of  government,  or  for  repelling  foreign  invasion; 
and  when  requested  by  the  provincial  authorities,  for  maintaining  them 
in  power  or  reestablishing  them  if  deposed  by  sedition  or  by  invasion 
from  another  province." 

The  federal  government  decided  to  ignore  the  request  of  the 
governor,  for  compliance  therewith  would  have  compelled  the  decree- 
ing of  intervention  for  the  sole  purpose  of  restoring  the  deposed 
authorities.  The  acting  president  and  his  ministers  took  the  ground 
that  in  the  province  of  San  Juan  the  republican  form  of  government 
had  been  overthrown  and  that  the  situation  therefore  called  for  inter- 
vention much  broader  in  scope. 

A  few  hours  after  the  issuance  of  this  decree,  a  second  decree  was 
promulgated  in  the  following  terms: 

Art.  1.  Dr.  Cornelio  Moyano  Gacitua,  justice  of  the  national  supreme 
court,  is  appointed  national  commissioner  in  the  province  of  San  Juan. 

Art.  2.  The  minister  of  war  will  issue  orders  with  reference  to  the  national 
troops  to  be  placed  at  the  disposal  of  the  national  commissioner. 

Art.  3.  The  minister  of  the  interior  will  issue  instructions  to  the  national 
commissioner. 

Art.  4.  The  expenditures  incident  to  the  intervention  shall  be  paid 
out  of  funds  not  otherwise  appropriated. 

The  constitutional  position  assumed  by  the  federal  executive  is 
clearly  set  forth  in  an  official  communication  of  the  minister  of  the 
interior  to  the  deposed  governor  in  reply  to  a  second  request  for 
federal  intervention,  for  the  purpose  of  restoring  him  to  power.  The 
reply  read  as  follow  - 

"Bcexos  Aires,  February  12. 
"Senor  Mantel  J.  Godoy,  Governor  of  San  Juan: 

"1  have  the  honor  to  acknowledge  your  telegram  of  yesterday  in  which 
your  excellency  states  the  causes  which,  in  your  opinion,  led  to  the  revolution 
of  the  7th  instant,  and  in  which  you  also  point  out  the  previous  attempts  of 
the  Bame  character.  In  this  telegram  you  also  request  that  the  federal 
intervention  be  limited  to  reestablishing  the  authority  of  the  government. 

"Your  excellency's  first  requisition  arrived  some  hours  after  the  decree 
of  intervention  had  been  issued,  whereas  your  second  requisition  is  formu- 


A   Typical  Case  of  Federal  Intervention  85 

latcd  after  order  has  been  established  in  San  Juan,  as  a  direct  result  of  this 
decree  and  the  measures  adopted  by  the  federal  government  in  pursuance 
thereof. 

"The  national  executive  is  determined  to  use  all  the  means  at  his  com- 
mand in  order  to  assure  domestic  peace  and  order,  and  proceed  with  the 
energy  and  prudence  which  the  circumstances  require.  In  order  to  accom- 
plish this  purpose  and,  in  pursuance  of  its  undisputed  authority,  the  federal 
government  adopted  the  measures  which  have  been  communicated  to  you, 
and  which  it  is  proposed  to  carry  to  successful  issue  with  unfailing  integrity 
of  purpose. 

"Your  excellency  will  pardon  me  if  I  refrain  from  entering  upon  an 
analysis  of  the  considerations  of  public  law  contained  in  your  telegram, 
especially  in  view  of  the  fact  that  this  is  neither  the  time  nor  the  place  to 
enter  upon  such  a  discussion.  The  federal  commissioner  who  has  been 
appointed,  and  whose  name  is  a  guarantee  of  ability  and  impartiality,  will 
carefully  study  the  conditions  of  law  and  fact  which  will  prepare  the  way 
for  a  decision  of  the  question  whether  the  deposed  authorities  shall  be  re- 
established, or  whether  it  is  necessary  to  reorganize  the  government  of  the 
province. 

"I  will  transmit  to  the  federal  commissioner  a  copy  of  your  excellency's 
telegram,  which  will,  no  doubt,  serve  as  one  of  the  elements  upon  which  his 
final  judgment  will  be  based. 

"Manuel  A.  Montes  de  Oca, 

"Minister  of  the  Interior." 

The  national  commissioner  arrived  at  San  Juan,  the  capital  of 
the  province,  on  February  15.  The  far-reaching  powers  vested  in 
him  clearly  illustrate  the  power  of  the  central  government  over  the 
provinces  in  the  Argentine  system. 

The  formal  instructions  issued  by  the  minister  of  the  interior 
directed  that  "after  a  careful  study  of  the  facts  and  legal  antecedents, 
the  commissioner  should  decide  whether  the  government  overthrown 
by  the  revolution  of  February  7  should  be  reestablished,  or  whether 
a  partial  or  total  reorganization  of  the  provincial  government  should 
be  undertaken."  In  the  latter  case  he  was  authorized  to  declare 
such  offices  vacant  as  he  deemed  necessary,  and  proceed  to  fill  them 
in  accordance  with  the  constitution  and  laws  of  the  province. 

It  is  evident  at  a  glance  that  such  an  interpretation  of  article  6 
of  the  constitution  places  the  provincial  government  completely  at 
the  mercy  of  the  federal  authorities.  In  order  to  secure  the  support 
of  the  provincial  authorities  the  federal  government  possesses  this 
far-reaching  power  of  intervention,  which  is  a  constant  menace  to 
the  tenure  of  provincial  governors.1 

It  would  seem  that  the  governor  of  San  Juan  having  been  duly 
elected  and  installed  in  office,  the  constitutional  obligations  of  the 
federal  government  would  have  been  duly  fulfilled  by  Riving  effect  to 
that  portion  of  article  6  which  makes  it  the  duty  of  the  federal  govern- 

•  For  a  more  detailed  discussion  of  the  dangers  involved  in  tins  wide  extension  of  the  powers 
of  intervention  see  Chapter  VII. 


86  The  Federal  System  of  the  Argentine  Republic 


ment,  when  requested  by  the  provincial  authorities,  to  intervene  for  the 
purpose  of  maintaining  them  in  power  or  reestablishing  their  authority 
if  deposed  by  domestic  violence  or  by  invasion  from  another  province. 

Instead  of  adopting  this  course,  the  federal  commissioner,  acting 
under  instructions  from  the  minister  of  the  interior,  undertook  an 
investigation,  not  only  of  the  manner  in  which  the  governor  had 
been  elected,  but  also  of  the  honesty  and  fairness  of  all  elections 
for  members  of  the  provincial  legislature  held  subsequent  thereto. 
This  investigation  was  undertaken,  according  to  the  federal  com- 
missioner, in  order  to  ascertain  whether  a  republican  form  of  govern- 
ment really  existed  in  San  Juan,  preparatory  to  determining  whether 
or  not  the  federal  government  should  exercise  the  power  conferred 
upon  it  by  article  6,  to  guarantee  to  the  province  a  republican  form 
of  government.  As  a  result  of  this  investigation,  the  federal  com- 
missioner arrived  at  the  conclusion  that  although  the  governor  had 
been  duly  and  legally  elected,  there  had  occurred  during  his  adminis- 
tration fraudulent  practices  in  the  elections  for  members  of  the 
provincial  legislature.  Such  practices  had,  in  his  view,  undermined 
the  republican  form  of  government  and  made  it  necessary  to  proceed 
to  the  election  of  new  executive  and  legislative  authorities. 

On  March  18  the  federal  commissioner  issued  a  decree  declaring 
vacant  the  governorship  as  well  as  all  seats  in  both  branches  of  the  pro- 
vincial legislature.  The  preamble  to  this  decree  contains  a  summary 
of  the  reasons  upon  which  the  commissioner  based  his  conclusions. 
He  said  in  part : 

"Proceeding  in  accordance  with  my  instructions,  I  made  a  careful  and 
detailed  study  of  the  memoranda  submitted  by  the  governor  and  by  the 
representatives  of  the  opposition  party,  as  well  as  of  the  documents  and 
facts  which  I  had  collected.  The  examination  of  this  data  leads  one  to 
the  conclusion  that  although  the  present  provincial  authorities  may  have 
been  legally  elected  and  organized,  subsequent  election  abuses  were  so 
numerous  that  the  republican  form  of  government  was  in  reality  undermined 
when  the  recent  revolutionary  movement  took  place. 

"From  the  evidence  submitted  it  is  evident  that  the  estimable  citizen 
who  governed  the  province  was  not  able  or  did  not  know  how  to  prevent 
the  election  abuses,  which  had  reached  the  most  deplorable  extremes  in  the 
preparation  of  the  registry  list  and  in  the  elections  themselves  held  during 
the  years  1906  and  1907,  and  especially  those  held  on  the  14th  of  March 
and  the  25th  of  May,  1906.  It  is  important  to  note  that  the  authorities  of 
the  province,  other  than  the  executive,  were  also  involved  in  these  abuses. 

"It  is  true  that  armed  insurrections  should  be  repudiated  and  condemned 
as  a  means  of  securing  improved  political  conditions;  but  it  is  also  true  that 
it  is  the  duty  of  the  federal  government,  when  it  intervenes  in  a  province,  to 
protect  the  political  rights  of  the  citizen,  and  one  of  these  rights  is  the  free 
exercise  of  the  suffrage,  constituting,  as  it  does,  the  basis  of  the  representative 
system  as  provided  by  the  constitution  and  laws.  These  are,  therefore,  the 
considerations  of  law  and  fact  which  Berve  as  the  bases  for  our  decision. 
A  more  detailed  analysis  thereof  will  be  made  when  our  final  report  is 
submitted. 


A   Typical  Case  of  Federal  Intervention  87 

"In  the  province  of  San  Juan  it  is  absolutely  necessary  to  restore  the 
republican  form  of  government  in  order  that  the  people  may  as  soon  as 
possible  elect  the  legally  constituted  authorities,  who  shall  govern  their 
destinies  in  peace  and  liberty. 

"For  these  reasons  the  federal  commissioner,  in  the  name  of  the  execu- 
tive authority  of  the  nation,  decrees: 

"Art.  1.  That  the  incumbents  of  the  executive  and  legislative  offices 
of  the  province  of  San  Juan,  at  the  time  of  the  insurrectionary  movement  of 
February  7,  last,  are  herewith  declared  to  have  forfeited  their  offices,  and 
new  elections  are  hereby  ordered. 

"Art.  2.  The  manner  and  date  of  such  elections  will  hereafter  be  de- 
termined, but  such  elections  shall  be  held  in  conformity  with  the  constitution 
and  laws  of  the  province. 

"Art.  3.  This  decree  shall  be  proclaimed  and  published  in  the  official 
register." 

(Signed)        "C.  Moyano  Gacttua,  Federal  Commissioner. 
"Jos£  A.  Frias,  Secretary. 
"H.  D.  Aguiar,  Secretary." 

On  the  following  day  (March  19,  1907)  the  federal  commissioner 
issued  another  decree,  directing  the  holding  of  new  elections  for 
lieutenant-governor  to  serve  the  remainder  of  the  term  of  the  deposed 
executive,  and  for  senators  and  representatives  of  the  legislature. 
On  March  20  and  21  further  decrees  were  issued,  prescribing  details 
as  to  the  manner  of  holding  elections. 

As  was  to  be  foreseen,  the  candidate  of  the  opposition  party  wras 
elected  to  fill  the  unexpired  term.  A  year  later  the  leader  of  the 
revolutionary  movement,  Colonel  Sarmiento,  was  elected  governor. 

Viewed  in  its  purely  constitutional  aspects,  and  without  reference 
to  the  political  purposes  involved,  the  case  of  San  Juan  presents 
peculiar  interest,  because  it  illustrates  so  clearly  the  contrast  between 
the  constitutional  practice  in  the  Argentine  Republic  and  in  the 
United  States.  It  is  true  that  the  Argentine  constitution  goes  one 
step  further  than  the  constitution  of  the  United  States,  in  that  it 
guarantees  to  each  province  (article  5)  the  free  exercise  and  enjoy- 
ment of  its  political  institutions.  (See  article  5,  page  137.)  This 
article  was  not  invoked  in  the  San  Juan  intervention,  the  entire  pro- 
ceeding being  based  on  the  provision  of  article  6,  which  is  identical 
with  article  4,  section  4,  of  the  constitution  of  the  United  States.  In 
both  cases  the  obligation  is  placed  upon  the  federal  government  to 
guarantee  to  each  constituent  part  of  the  federal  system  (states  or 
provinces)  a  republican  form  of  government.  In  the  United  States 
this  has  been  construed  to  mean  nothing  more  than  a  guarantee  that 
the  people  shall  "choose  their  own  officers  for  governmental  admin- 
istration, and  pass  their  own  laws  in  virtue  of  the  legislative  power 
reposed  in  representative  bodies,  whose  legislative  acts  may  be  said 
to  be  those  of  the  people  themselves."  ' 

'  In  re  Duncan,  139  U.  8.,  449. 


88  The  Federal  System  of  the  Argentine  Republic 

In  the  Argentine  a  totally  different  view  has  been  taken  of  the 
power  which  this  clause  confers  on  the  federal  government.  Instead 
of  drawing  the  line,  as  indicated  in  this  decision,  the  thesis  maintained 
and  successfully  enforced  by  the  Argentine  government  has  been  that 
this  guarantee  involves  far  more  than  the  right  of  the  people  to  choose 
their  own  officers  and  to  make  laws  through  a  representative  assembly. 
It  also  includes  the  lawful  conduct  of  elections,  strict  compliance  with 
preliminary  requirements  in  the  formation  of  the  registry  rolls,  and 
finally  the  guarantee  of  an  accurate  count  of  the  election  results. 

In  one  sense  it  may  be  said  that  this  interpretation  of  the  consti- 
tutional clause  is  quite  as  reasonable  as  that  sustained  by  the  supreme 
court  of  the  United  States;  but  it  is  also  true  that  it  places  in  the 
hands  of  the  federal  government  the  power  to  reduce  the  provinces 
to  a  condition  of  political  subordination.  It  is  evident  that  if  the 
national  authorities  interpret,  as  a  requirement  of  a  "republican 
form  of  government,''  that  every  elective  officer  shall  hold  office 
through  an  election  entirely  free  from  fraud  or  intimidation,  there  is 
no  limit  to  the  federal  power  of  intervention.  Judged  by  the  standards 
applied  in  the  case  of  San  Juan,  there  is  certainly  no  state  of  our 
union  which  would  have  escaped  the  intervention  of  the  federal  gov- 
ernment at  some  time  or  other  in  its  history.  With  such  an  interpre- 
tation the  national  government  becomes  not  merely  the  guarantor  of  a 
republican  form  of  government  in  the  provinces,  but  also  of  its  smooth 
operation  and  to  a  certain  extent  of  the  integrity  of  its  political 
methods. 

If  the  national  government  were  able  to  keep  itself  aloof  from 
partisan  affiliations  this  guarantee  would  have  real  value.  From 
the  very  nature  of  the  situation  this  is  impossible.  The  fact  that  the 
party  in  power  in  national  affairs  requires  the  political  cooperation 
of  the  provincial  governors  makes  irresistible  the  temptation  to 
intervene  for  partisan  purposes.  It  is  for  this  reason  that  the  federal 
intervention  in  the  province  of  San  Juan  can  not  be  fully  understood 
if  studied  in  its  purely  constitutional  aspects.  In  order  to  form  an 
opinion  as  to  its  real  significance,  the  accompanying  political  condi- 
tions must  be  analyzed. 


PART  II. 

THE  ORGANIZATION  AND  PRINCIPLES  OF  THE 
FEDERAL  SYSTEM. 


CHAPTER   IX. 
THE  POSITION  OF  THE  EXECUTIVE. 

No  other  portion  of  the  Argentine  political  system  has  given  rise 
to  so  much  discussion  as  the  position  of  the  executive.  This  is  clue 
in  part  to  the  lack  of  clear  and  definite  formulation  of  executive  powers 
in  the  constitution  and  in  part  to  the  influence  of  deeply  rooted  politi- 
cal ideas  and  tendencies  inherited  from  Spain. 

The  memories  of  arbitrary  action  by  the  Spanish  viceroys  created 
in  the  minds  of  the  founders  of  the  republic  a  marked  distrust  of 
executive  power.  It  is  not  surprising,  therefore,  to  find  in  the  early 
revolutionary  assemblies  a  well-defined  reluctance  to  create  a  strong 
executive  or  even  to  vest  one  person  with  restricted  executive  power. 
The  early  attempts  at  political  organization  are  all  characterized  by 
the  formation  of  executive  boards,  "triumvirates,"  and  other  forms 
of  multiple  executive  heads.  The  inefficiency  and  lack  of  definite 
policy  resulting  from  this  type  of  organization  soon  forced  the  reluc- 
tant acceptance  of  a  single-headed  executive.  By  resolution  of  January 
22,  1814,  the  general  constituent  assembly  decreed  that  all  executive 
authority  should  be  vested  in  one  person.  A  few  days  later  it  was 
decided  to  give  to  the  chief  executive  the  title  "supreme  director  of 
the  united  provinces."  The  immediate  cause  of  the  acceptance  of  a 
single-headed  executive  was  the  impossibility  of  an  effective  military 
organization  under  the  "triumvirate"  system.  In  the  national  con- 
stituent congress  which  assembled  in  Tucuman  in  1816  and  which 
made  the  formal  declaration  of  independence  of  the  country,  there  was 
no  longer  any  question  as  to  the  desirability  of  a  single  executive 
head;  this  tendency  was  dictated  in  part  by  a  fear  of  the  reappear- 
ance of  the  old  system  of  "boards"  and  "triumvirates"  rather  than  a 
real  adherence  to  monarchical  principles.1  The  congress  of  Tucuman 
having  been  transferred  to  Buenos  Aires,  adopted  December  3,  1817, 
the  "provisional  regulations  for  the  direction  and  administration 
of  the  state."  In  these  regulations  the  executive  power  was  vested 
in  a  "director  of  the  state,"  elected  by  the  congress,  with  ample 
administrative  powers.  The  history  of  the  executive  power  between 
1817  and  the  constitutional  reorganization  of  1829  presented  a  con- 
stantly increasing  emphasis  on  executive  power  and  finally  led  to 
the  dictatorship  of  Juan  Manuel  Rosas,  which  lasted  from  1829  to 
1852.  With  the  downfall  of  Rosas,  in  December  1852,  Argentina 
entered  upon  a  new  period  of  constitutional  development.     In  spite 

1  Letter  of  General  San  Martin  to  Laprida,  cited  by  Del  Valle,  Derecho  Conetitucional,  p.  327. 

91 


9%  The  Federal  System  of  the  Argentine  Republic 

of  the  long  period  of  dictatorship  through  which  the  country  had 
passed,  the  convention  that  framed  the  constitution  of  1S53  gave 
evidence  of  an  unexpected  willingness  to  provide  for  a  vigorous  execu- 
tive authority.  It  would  have  been  natural  after  a  long  period  of 
tyranny  to  find  the  new  constitution  filled  with  provisions  intended 
to  guard  against  possible  abuses  of  power.  The  members  of  the 
convention  were  sufficiently  clear-sighted  to  avoid  the  mistakes  of 
the  early  constitutions  of  the  republic  and  provided  for  an  executive 
with  far-reaching  powers. 

In  order  to  understand  the  position  of  the  executive  in  the  Argen- 
tine political  system,  it  is  necessary  to  look  beyond  the  written 
constitution  and  carefully  observe  the  operation  of  the  political 
mechanism.  With  one  notable  exception,  the  powers  of  the  Argentine 
president  as  denned  in  the  constitution  are  strikingly  similar  to  those 
of  the  president  of  the  United  States.  He  is  chosen  for  a  period  of 
six  years  under  a  system  of  indirect  election,  by  which  electors  chosen 
by  the  people  assemble  for  the  purpose  of  selecting  a  president.  The 
system  has  developed  in  precisely  the  same  manner  as  in  the  United 
States  —  the  people,  although  voting  for  electors,  in  reality  select 
the  candidate  for  whom  they  desire  to  cast  their  vote,  the  electors 
being  in  fact  compelled  to  cast  their  votes  for  the  candidate  designated 
on  the  respective  tickets.  Reelection  can  only  take  place  after  a  presi- 
dential period  has  elapsed  subsequent  to  the  term  for  which  he  has 
been  elected.     The  manner  of  election  is  provided  for  as  follows : 

"Art.  81.  The  election  of  the  president  and  vice-president  of  the  nation 
shall  be  made  in  the  following  manner:  The  capital  and  each  one  of  the 
provinces  shall  appoint,  by  direct  vote,  an  electoral  college,  consisting  of 
twice  as  many  members  as  the  number  of  senators  and  deputies  constituting 
their  respective  representation  in  congress,  who  shall  have  the  same  qualifica- 
tions, and  shall  be  elected  in  the  same  manner,  as  provided  in  the  present 
constitution  for  the  election  of  deputies. 

"Deputies,  senators,  and  officials  receiving  pay  from  the  federal  govern- 
ment shall  be  disqualified  from  acting  as  electors. 

"Four  months  before  the  expiration  of  the  presidential  term,  the  electors 
chosen  by  the  capital  shall  meet  in  the  capital,  and  those  chosen  by  the 
provinces  in  their  respective  capitals,  and  shall  proceed  to  elect  by  signed 
ballots  the  president  and  vice-president  of  the  nation,  expressing  in  one  ballot 
the  choice  for  president  and  in  another  distinct  ballot  the  choice  for  vice- 
president. 

"Two  lists  shall  be  made  of  all  the  persons  named  for  president  and  two 
others  of  those  named  for  vice-president,  with  the  number  of  votes  cast  in 
favor  of  each  of  them.  These  lists  shall  be  signed  by  the  electors  and  sent  by 
them  sealed,  two  (one  of  each  kind)  to  the  president  of  the  provincial  legis- 
lature, and  in  the  case  of  the  capital  to  the  president  of  the  municipality  — 
to  be  filed  and  kept,  with  their  seals  unbroken,  in  their  respective  archives  — 
and  the  other  two  to  the  president  of  the  senate  (for  the  first  election,  to  the 
president  of  the  constitutional  convention). 

"Art.  82.  The  president  of  the  senate  (for  the  first  election,  the  president 
of  the  constitutional  convention),  having  all  the  list-  in  his  possession,  shall 


The  Position   of  the   Executive  93 

open  them  in  the  presence  of  the  two  bouses.  Four  members  of  congress, 
selected  by  lot,  shall,  together  with  the  secretaries,  immediately  proceed  to 
count  and  announce  the  votes  cast  for  each  candidate  for  president  and  vice- 
president  of  the  nation.  Those  receiving  in  each  ease  an  absolute  majority 
of  all  the  votes  shall  be  immediately  proclaimed  president  and  vice-president . 
"Art.  83.  In  case  the  vote  is  divided  and  no  absolute  majority  can 
thus  be  obtained,  congress  shall  elect  one  of  the  two  persons  who  shall  have 

obtained  the  greatest  number  of  votes.  If  the  highest  vote  obtained  proves  to 
be  in  favor  of  more  than  two  persons,  congress  shall  make  its  choice  from 
among  all  of  them. 

"If  the  highest  vote  obtained  proves  to  be  in  favor  of  only  one  person 
and  two  or  more  persons  are  favored  with  the  next  largest  vote,  the  choice 
of  congress  shall  be  made  from  among  all  those  who  obtained  the  first  and 
second  highest  votes. 

"Art.  84.  This  choice  shall  be  made  by  an  absolute  majority  of  votes, 
the  votes  to  be  verbal.  If  such  majority  is  not  obtained  on  the  first  ballot, 
a  second  vote  shall  be  taken,  restricting  the  vote  to  the  two  persons  who 
shall  have  obtained  the  greatest  number  of  votes  on  the  first  ballot.  If  the 
vote  is  equally  divided,  the  balloting  shall  be  repeated,  but  if  it  again  results 
in  an  equal  division,  the  president  of  the  senate  (for  the  first  election  the 
president  of  the  constitutional  convention)  shall  decide  by  his  vote.  The 
counting  of  the  votes  and  the  verifying  of  these  elections  shall  not  be  made 
without  the  presence  of  three-fourths  of  all  the  members  of  congress. 

The  administrative  powers  of  the  president  of  the  Argentine 
Republic  are  somewhat  more  extensive  than  those  of  the  president 
of  the  United  States.  His  powers  of  appointment  are  not  only  far 
greater,  but  most  appointments  are  made  without  the  advice  and 
consent  of  the  senate.  This  power  has  been  the  most  important 
factor  in  giving  to  the  president  a  dominant  position  in  the  Argentine 
political  system  and  has  enabled  him  to  resist  successfully  all 
attempted  encroachments  of  the  legislative  authority  upon  executive 
prerogative. 

The  one  point  upon  which  the  framers  of  the  constitution  of 
1853  insisted  was  that  all  acts  and  orders  of  the  president  be  counter- 
signed by  one  of  his  responsible  ministers.  Without  such  counter- 
signature the  orders  of  the  president  are  void  and  without  effect. 
This  provision  has  had  a  far-reaching  effect  on  the  Argentine  con- 
stitutional system,  the  precise  nature  of  which  has  been  the  subject 
of  interminable  discussion  on  the  part  of  jurists  and  publicists.  Is 
the  Argentine  system  of  government  presidential  or  parliamentary? 
It  is  no  exaggeration  to  say  that  volumes  have  been  written  on 
this  subject,1  without  arriving  at  any  satisfactory  conclusion  or  at 
least  without  arriving  at  any  conclusion  which  has  received  general 
assent. 

The  question  to  which  an  answer  should  be  given  is  not  so  much 
to  ascertain  the  intent  of  the  framers  of  the  constitution  of  1853  as 

1  See  Funcion  Constitutional  de  los  Ministros,  containing  a  series  of  essays  by  prominent  pub- 
licists.   Biblioteca  Argentina  de  Ciencias  Potiticas,  vol.  2,  Buenos  Aires,  1911. 


94  The  Federal  System  of  the  Argentine  Republic 

to  determine  the  nature  of  the  political  mechanism  that  has  actually 
developed.  The  distinguishing  characteristic  of  the  position  of  the 
Argentine  executive  as  compared  with  that  of  the  president  of  the 
United  States  is  to  be  found  in  articles  87,  88,  and  89,  which  read  as 
follows : 

"Art.  87.  Eight  ministers  or  secretaries  shall  have  charge  of  the  affairs 
of  the  nation,  and  shall  countersign  and  attest  the  acts  of  the  president  by- 
means  of  their  signatures;  these  acts  shall  not  be  valid  without  such  counter- 
signature.    A  special  law  shall  determine  the  business  of  each  department. 

"Art.  88.  Each  minister  is  individually  responsible  for  the  acts  signed  by 
himself,  and  jointly  with  the  other  ministers  for  all  acts  agreed  upon  between 
him  and  his  colleagues. 

"Art.  89.  The  ministers  shall  not,  in  any  case,  take  individual  action 
on  any  subject,  unless  it  concerns  only  the  internal  government  of  their  own 
respective  departments."1 

From  the  earliest  period  2  we  find  the  founders  of  the  Argentine 
political  system  insistent  on  the  necessity  of  establishing  executive 
responsibility  through  the  countersignature  of  all  presidential  orders 
or  decrees  by  a  member  of  the  cabinet,  who  thereby  assumes  the 
responsibility  therefor.  This  plan  was  taken  from  the  French  con- 
stitution of  1791  (chapter  II,  section  IV,  article  IV),  which  provides 
that  no  order  of  the  king  shall  take  effect  unless  countersigned  by 
the  minister  of  the  respective  department.3 

In  the  Argentine  political  system,  therefore,  the  cabinet  ministers 
occupy  a  distinct  constitutional  position,  whereas,  as  is  well  known, 
the  constitution  of  the  United  States  is  silent  on  this  point,  the  presi- 
dent alone  assuming  all  responsibility  for  executive  acts;  a  responsibility 
which,  however,  can  only  be  enforced  by  impeachment  proceedings. 

Does  this  constitutional  provision  for  ministerial  responsibility 
mean  that  the  Argentine  system  departs  from  the  plan  of  presidential 
government  and  establishes  either  a  parliamentary  system  or  some- 
thing approaching  thereto? 

Whatever  may  have  been  the  intent  of  the  framers  of  the  con- 
stitution of  1853  —  and  there  is  no  internal  evidence  to  show  that 
they  were  bent  on  establishing  a  system  of  parliamentary  govern- 
ment —  the  fact  is  that  the  constitution  does  not  make  specific 
provision  for  such  a  S3rstem,  nor  has  anything  approaching  a  real 
parliamentary  system  developed  during  the  six  decades  of  constitu- 
tional growth.  The  causes  are  due  in  part  to  the  political  ideas 
inherited  from  Spain  which  have,  in  many  cases,  proved  stronger 
than  constitutional  precepts  and  in  part  to  certain  peculiarities  of 
national  political  life. 

1  An  amendment  of  March  15,  1898,  increases  the  number  of  ministers  to  eight,  designated 
respectively  as  follows:  interior;  foreign  affairs  and  public  worship;  treasury;  justice; 
agriculture;  public  instruction;  war;  and  navy. 

'  Reglamcnto  Provisorio  of  December  3,  1817,  and  article  102  of  the  constitution  of  1S26. 
Maticnzo,  El  Gobierno  Representative,  p.  175. 


The  Position  of  the  Executive  95 

The  essence  of  the  parliamentary  system  is  the  dominant  position 
of  the  legislative  authority,  the  executive  being  nothing  more  than 
a  committee  of  the  dominant  party  in  the  most  popular  branch  of 
the  national  assembly.  The  head  of  the  state,  whether  constitutional 
monarch  or  president,  is  merely  the  nominal  executive  who  "reigns 
but  does  not  govern." 

Argentina  inherited  from  Spain  the  traditions  of  a  vigorous 
executive  accustomed  to  act  without  consulting  any  other  authority 
and  dominating  the  legislative  authority  whenever  brought  into  con- 
tact therewith.  The  idea  of  an  executive  subordinated  to  the  legislative 
authority  was  completely  foreign  to  Spanish  ideas  of  the  eighteenth 
century. 

Throughout  the  nineteenth  century  the  supremacy  of  the  execu- 
tive over  the  legislative  authority  has  been  characteristic  of  the 
political  development  of  the  country,  both  in  the  provincial  and  the 
federal  governments.  This  fact  alone  would  have  been  sufficient  to 
overcome  any  tendency  toward  the  establishment  of  parliamentary 
government,  even  if  the  constitution  were  more  specific  with  reference 
to  the  relation  of  the  executive  to  the  legislative  authority. 

The  subordination  of  the  legislative  to  the  executive  authority 
in  the  actual  operation  of  the  political  system  of  Argentina  is  evident, 
not  only  during  the  sessions  of  the  national  congress,  but  also  in  the 
relation  of  the  president  to  the  candidacy  of  persons  desiring  election 
as  representatives.  With  the  exception  of  the  provinces  in  which 
the  governor  is  a  political  opponent  of  the  president,  the  candidates 
for  members  of  the  lower  house  are  usually  selected  after  consul- 
tation between  the  governor  and  the  president  or  his  representative. 
Thus,  the  president  is  assured  of  far-reaching  influence  in  the  congress. 
This  influence  is  strengthened  by  the  absence  of  well-defined  national 
political  parties,  with  definitely  formulated  principles  and  platform. 
The  only  exception  to  this  rule  is  the  socialist  party,  which,  while 
increasing  in  strength,  is  not  as  yet  an  important  factor  in  the 
political  life  of  the  nation.  The  personal  character  of  all  the  impor- 
tant political  groups  makes  it  comparatively  easy  for  the  president, 
through  a  judicious  distribution  of  patronage,  to  make  them  sub- 
servient to  his  will. 

With  the  traditions  of  executive  power  reinforced  by  certain  of 
the  salient  characteristics  of  Argentine  political  life,  it  is  not  sur- 
prising that  the  executive  has  established  and  maintained  its  hold 
over  the  legislative  authority  and  that  in  such  circumstances  the 
development  of  parliamentary  government  has  been  impossible. 
The  requirement  that  all  executive  acts  shall  be  countersigned  by  a 
member  of  the  cabinet  has  in  no  way  diminished  the  real  political 
power  and  influence  of  the  president.  The  resignation  of  individual 
ministers  takes  place,  as  a  rule,  not  as  the  result  of  a  vote  of  lack  of 


96  The  Federal  System  of  the  Argentine  Republic 

confidence  on  the  part  of  the  congress,  but  because  of  differences  of 
opinion  with  the  president.  In  a  few  instances,  ministers  have  re- 
signed because  of  difficulties  with  the  congress,  such  as  the  rejection 
of  measures  which  they  had  fostered  or  the  reduction  of  appropria- 
tions in  their  departments,  but  such  resignations  are  traceable  to 
personal  considerations  rather  than  to  an  acquiescence  in  the  con- 
trolling power  of  the  congress. 

This  dominant  position  of  the  executive  in  the  Argentine  political 
system  is  clearly  shown  when  we  compare  the  proceedings  of  the 
national  congress  with  the  congress  of  the  United  States.  In  the 
first  place,  in  all  matters  relating  to  the  budget  the  presumption  is 
strongly  in  favor  of  the  estimates  submitted  by  the  executive.  Dur- 
ing the  extra  session  of  1914,  owing  largely  to  the  fact  that  the 
country  was  passing  through  a  severe  financial  crisis,  the  budget 
commission  of  the  congress  took  greater  liberties  with  the  executive 
estimates  than  at  any  time  in  the  recent  legislative  history  of  the 
country,  but  this  was  due,  in  the  main,  to  the  necessity  of  effect- 
ing a  readjustment  of  expenditures  to  the  diminished  income  of  the 
public  treasury. 

In  the  ordinary  course  of  legislation  the  most  important  measures 
are  usually  prepared  by  the  executive  and  submitted  to  the  congress 
with  a  report  in  which  the  views  of  the  president  are  set  forth.  It  is 
also  customary  for  the  minister  to  whose  particular  department  the 
legislation  in  question  belongs  to  appear  in  both  houses  in  order  to 
explain  and  defend  the  measure. 

The  constitutional  provisions  giving  to  the  congress  the  power 
to  call  cabinet  ministers  for  the  purpose  of  securing  explanations  of 
measures  or  of  any  matters  relating  to  their  respective  administrative 
departments  have  not  served  to  strengthen  the  hold  of  the  congress 
on  the  executive.  It  has  been  used  at  times  to  annoy  the  president 
and  his  ministers,  but  has  not  been  a  weapon  sufficiently  powerful  to 
force  the  resignation  of  a  cabinet.  On  the  other  hand,  it  has  served  a 
most  useful  purpose  in  keeping  the  legislative  authority  in  closer 
touch  with  the  executive  than  would  otherwise  have  been  possible. 

As  regards  the  cabinet  itself,  the  president  is  entirely  free  in  his 
choice.  He  may  select  the  members  from  the  political  party  to  which 
he  owes  his  election,  or  he  may  endeavor,  as  several  presidents  have 
done,  to  use  the  cabinet  as  a  means  of  reconciling  or  consolidating 
elements  which  have  not  been  entirely  concordant,  with  a  view  to 
strengthening  the  political  support  of  his  administration. 

Of  the  eight  ministers  constituting  the  cabinet,  it  has  been  the  cus- 
tom of  successive  presidents  to  select  half  from  the  provinces  and  half 
from  the  city  of  Buenos  Aires.  In  selecting  ministers  from  the  prov- 
inces, however,  no  attempt  has  been  made  at  sectional  representation,1 

1   Article  of  Ruiz  Moreno  in  syn  Qtitled  "Kuncion  Constitucional  dp  los  Ministros,"  p.  8. 


The  Position  of  the  Executive  97 

the  purpose  being  rather  to  assemble  in  the  cabinet  the  several  polit- 
ical elements  which  will  assure  greatest  prestige  to  the  administration. 

It  will  be  seen  from  the  foregoing  description  that  the  Argentine 
system  is  essentially  presidential,  both  because  of  the  relation  of  the 
cabinet  to  the  congress  and  because  of  the  independent  position  of 
the  executive.  Whatever  they  may  in  time  become,  at  the  present 
day  the  cabinet  ministers  are  nothing  more  than  personal  advisers 
to  the  president  and  heads  of  executive  departments. 

Independent  of  the  constitution  and  in  many  cases  in  violation 
of  its  spirit,  if  not  of  its  letter,  there  have  developed  certain  executive 
practices  in  Argentina  which  further  indicate  the  dominant  position 
of  the  executive  and  which  have  at  the  same  time  given  to  the  cabinet 
an  importance  which  it  would  not  otherwise  have  attained.  I  refer 
to  the  so-called  "  Acuerdos  de  Gabinete,"  by  which  is  meant  a  cabinet 
meeting  called  by  the  president  at  which  action  is  taken  on  matters 
submitted  by  the  president.  These  meetings  have  undertaken  to  make 
appropriations  not  provided  for  in  the  annual  budget  and  thus  to 
remove  from  the  congress  the  real  control  of  the  national  finances. 
Against  this  practice  there  has  been  no  lack  of  protest,  but  to  no 
avail.  The  result  has  been  to  burden  the  country  with  expenditures 
far  in  excess  of  those  provided  for  in  the  annual  budget  as  voted  by 
the  congress.  It  also  is  evident  that  this  power,  nowhere  contem- 
plated in  the  constitution,  not  only  places  a  dangerous  weapon  in  the 
hands  of  the  executive,  but  enables  him  to  make  serious  inroads  on 
the  most  important  power  of  the  national  congress,  namely,  the  con- 
trol over  national  finances. 

As  regards  the  relations  existing  between  the  president  and  the 
congress,  it  may  be  said  that  these  relations  have  usually  been  entirely 
cordial,  due  in  part  to  the  extra-constitutional  influence  exerted  by 
the  executive,  which  in  most  cases  has  assured  a  docile  congress. 
When  differences  have  occurred,  the  president  usually  has  been 
victorious.  In  cases  of  acute  conflict,  such  as  occurred  in  1908,  the 
executive  resorted  to  the  extreme  measure  of  closing  the  congress 
peremptorily,  enforcing  the  decree  through  the  use  of  the  military 
arm  and  declaring  the  budget  of  the  preceding  year  to  be  in  force. 

The  possibility  of  resorting  to  such  extreme  measures  success- 
fully is  strengthened  in  Argentina  by  the  fact  that  the  political  ideas 
of  the  people  inherited  from  Spain  lead  them  instinctively  to  sup- 
port the  executive  as  against  the  legislative  authority.  It  is  to  the 
executive  that  the  people  look  for  the  great  reforms.  The  influence 
which  he  can  exert  is  well  illustrated  in  the  recent  administration  of 
President  Roque  Saenz  Pena,  who  went  into  office  with  the  avowed 
purpose  of  eliminating  the  fraud,  intimidation,  and  bribery  which 
for  so  many  years  had  characterized  both  the  national  and  the 
local  elections.    He  forced  through  the  congress  an  election  law  which 


98  The  Federal  System  of  the  Argentine  Republic 

made  voting  obligatory  and  at  the  same  time  attempted  to  assure 
the  secrecy  of  the  ballot.  The  effect  was  immediately  apparent. 
Political  elements  hitherto  having  been  denied  representation  were 
successful  in  electing  their  candidates,  thus  bringing  into  the  congress 
new  and  independent  forces  which  already  have  shown  their  influence 
in  giving  to  the  national  legislature  a  degree  of  freedom  from  execu- 
tive control  which  marks  a  new  epoch  in  the  political  development  of 
the  republic. 

It  is  altogether  likely  that  with  the  growth  of  a  more  vigorous 
political  life,  with  the  secrecy  of  the  ballot  and  freedom  of  suffrage 
assured,  the  confidence  of  the  people  in  the  congress  will  be  strength- 
ened. This  will  probably  bring  about  a  weakening  of  the  position  of 
the  executive  or  at  least  a  limitation  of  the  extra-constitutional  powers 
which  it  now  exercises. 


CHAPTER   X. 
THE  LEGISLATIVE  AUTHORITY. 

One  of  the  most  difficult  tasks  of  the  foreign  student  of  Argentine 
institutions  is  to  determine  with  any  degree  of  precision  the  influence 
of  the  national  congress  in  shaping  the  political  destinies  of  the 
country.  The  constitution  gives  to  the  legislative  authority  powers 
quite  as  ample  as  those  granted  to  the  congress  by  the  constitution 
of  the  United  States.  Nevertheless,  for  reasons  explained  in  part  in 
the  preceding  chapter,  the  congress  has  been  a  relatively  subordinate 
factor  in  the  political  mechanism  of  the  Argentine  system.  The 
explanation  is  not  to  be  sought  in  any  failure  of  the  constitution  to 
grant  ample  powers,  but  rather  in  the  Spanish  tradition  of  executive 
supremacy  combined  with  a  certain  lack  of  confidence  of  the  people 
in  the  earnestness  of  purpose  of  the  national  legislature. 

Whatever  may  have  been  the  virtues  of  the  early  legislative 
assemblies,  inspired  by  the  patriotic  fervor  of  the  revolutionary 
period,  the  record  of  achievement  since  the  adoption  of  the  constitu- 
tion of  1853  has  not  been  such  as  to  command  the  confidence  of  the 
masses.  In  the  first  place  the  legislative  history  of  the  country, 
until  a  very  recent  period,  shows  a  singular  indifference  on  the  part 
of  the  congress  to  measures  designed  to  improve  the  condition  of  the 
working  classes.  Such  measures  as  have  been  passed  have  been  due 
to  the  zeal  of  cabinet  ministers.  Until  the  rise  of  the  socialist  party 
(1901),  which,  although  small  in  number,  is  making  its  influence  felt 
in  the  lower  house,  the  congress  gave  but  little  attention  to  the  wel- 
fare of  the  laboring  classes. 

Until  very  recently  the  voters  have  shown  but  little  interest  in  the 
congressional  elections  and  but  a  comparatively  small  percentage  has 
participated  therein.  That  a  real  and  vital  interest  can  be  aroused 
when  the  people  have  confidence  in  the  honesty  of  elections  is  attested 
by  the  extraordinarily  active  participation  in  the  national  elections 
of  1912,  the  first  to  be  held  under  the  new  election  law,  which  assured 
secrecy  and  a  fair  count.  It  is  true  that  the  law  also  provided  for 
obligatory  voting,  inflicting  a  penalty  of  10  pesos  (about  $4.40)  for  a 
first  offense  in  failing  to  vote  without  good  cause  and  20  pesos  ($8.80) 
for  a  second  offense.  There  was  a  general  belief,  however,  that  this 
penalty  would  not  be  enforced,  as  in  fact  it  has  not  been.  It  is  not 
likely,  therefore,  that  the  obligatory  voting  clause  perceptibly  increased 
the  number  of  votes  cast.  The  guarantees  for  secrecy  and  honesty  of 
count  were  sufficient  to  arouse  an  extraordinary  interest  in  the  elec- 
tion.   Campaigning  was  carried  on  with  a  zeal  heretofore  unknown 

99 


100 


The  Federal  System  of  the  Argentine  Republic 


in  the  political  history  of  the  country.  The  results  of  the  election 
indicate  not  only  an  unprecedented  participation  of  the  electorate, 
but  also  the  rejection  of  many  candidates  who,  in  former  elections, 
were  assured  of  success  because  of  the  mere  fact  that  they  enjoyed 
the  support  of  the  national  executive. 

National  elections  of  1912. 


Registered. 


Vote 

east. 


Percentage  of 

votes  cast  to 

voters  registered 


Capital,  federal 

Provinces 

Buenos  Aires 

Cordoba 

Santa  F6 

Tucumdn 

Entre  Rios 

Corrientes 

Mendoza 

Santiago  del  Estero . 

Salta 

San  Luis 

San  Juan 

Catamarca 

La  Rioja 

Jujuy 

Total 


126,303 


232,000 
99,929 
98,371 
70,815 
63,184 
53,485 
38,500 
35,261 
26,627 
22,187 
21,111 
18,332 
15,916 
12.380 

934,401 


106,157 


153,602 
55,460 
74,383 
39,891 
41,602 
39,897 
24,467 
23,136 
15,745 
16,442 
17,580 
12,434 
11,596 
8,460 

640,852 


84.05 


66.21 
55.49 
75.60 
56.33 
65.84 
74.59 
63.55 
65.64 
59.13 
74.11 
83.26 
67.83 
72.86 
68.34 
68.58 


Owing  to  the  fact  that  neither  house  of  the  Argentine  congress 
is  renewed  at  any  time  in  toto,  the  elections  of  any  one  period  can  not 
fully  reflect  the  state  of  public  opinion.  The  elections  of  1912  would 
have  had  a  far  deeper  influence  on  the  tone  and  spirit  of  the  chamber 
of  deputies  if  the  renewal  of  membership  had  been  complete.  But 
even  this  partial  renewal  has  served  to  introduce  new  elements  into 
the  lower  house  which  have  had  a  real  influence  on  the  character  of 
legislation,  but  especially  on  the  attitude  of  the  people  toward  the 
congress.  Since  the  beginning  of  the  regular  session  of  1913,  the  public 
has  evinced  a  more  sustained  interest  in  the  debates  than  at  any 
previous  period  in  the  history  of  the  country.  Had  it  not  been  for 
the  severe  financial  and  commercial  crisis  through  which  the  country 
was  then  passing,  it  seems  quite  certain  that  the  many  important 
social  problems  awaiting  legislative  solution  would  have  received 
attention.  At  all  events,  it  is  evident  that  if  the  elections  continue 
to  be  safeguarded  with  the  same  care  and  zeal  as  was  the  case  in 
1912,  the  position  of  the  congress  will  be  considerably  strengthened. 

The  members  of  the  lower  house  of  the  Argentine  congress  —  the 
chamber  of  deputies  —  are  elected  by  direct  popular  vote,  the  con- 
stitution prescribing1  that  there  shall  be  one  representative  for  every 


>  Article  37,  as  amended  March  15,  189S. 


The  Legislative  Authority  101 

33,000  inhabitants.  The  qualifications  for  electors  are  determined  by 
federal  law.  Every  male  citizen  18  years  of  age  is  entitled  to  vote 
except  the  following: 

(a)    Adjudged  lunatics  living  in  their  respective  homes. 

(6)    Deaf  mutes  unable  to  write. 

(c)    Priests  living  in  religious  communities. 

(rf)    Persons  under  arrest. 

(e)    Inmates  of  lunatic  asylums  and  poor-houses. 

(/)    Persons  convicted  a  second  time  of  offenses  against  property 

(for  a  period  of  five  years  after  such  second  conviction). 
(g)    Persons  convicted  of  perjury  or  of  violations  of  the  election  law 

(for  a  period  of  five  years  after  such  conviction). 
(h)    All  persons  declared  by  judicial  decree  to  be  incapacitated  to 

hold  public  office, 
(i)    Fraudulent  bankrupts  until  their  discharge  in  bankruptcy. 
(j)    Those  convicted  of  misuse  of  trust  funds  until  restitution  of  such 

funds  has  been  made. 
(k)    All  persons  serving  a  term  of  imprisonment,  during  the  period 

of  the  sentence. 
(I)     All  persons  who  have  attempted  to  evade  military  service  until 

they  have  submitted  to  the  penalty  for  the  violation  of  the 

law  relating  to  universal  military  service. 
(m)  All  persons  expelled  from  the  army  and  deserters  for  a  period 

of  ten  years  after  conviction  for  the  offenses  involved, 
(n)    All  persons  convicted  of  misappropriation  of  public  funds,  until  the 

amounts  involved  have  been  returned  to  the  public  treasury, 
(o)    Proprietors  and  managers  of  houses  of  prostitution. 

Under  the  Argentine  election  law,  registry  is  obligatory.  This  is 
due  to  the  fact  that  such  registry  is  used  primarily  for  the  enforce- 
ment of  universal  military  service.  Within  three  months  after  having 
reached  the  age  of  18  years  every  native-born  or  naturalized  citizen 
is  required  to  present  himself  to  the  municipal  authorities,  where  such 
exist,  or  to  the  justice  of  the  peace  in  the  rural  districts,  for  purposes 
of  enrollment.  Failure  to  do  so  involves  heavy  penalties,  ranging  from 
a  fine  to  a  year's  additional  military  service. 

In  spite  of  the  conscientious  effort  made  to  improve  the  election 
law,  the  mechanism  of  voting,  when  judged  by  modern  standards,  is 
singularly  defective.  The  official  ballot  is  unknown,  each  party 
supplying  ballots  which  the  voter  takes  with  him  or  secures  after 
entering  the  voting  booth.  The  multiplicity  of  ballots  is  exceedingly 
confusing,  especially  to  the  ignorant  voter.  Furthermore,  it  tends 
to  facilitate  the  purchase  of  votes  by  enabling  election  agents  to 
supply  the  ballots  to  venal  voters.  When  voters  are  supplied  with 
ballots  by  party  representatives,  rather  than  compelled  to  make  their 
selection  of  candidates  from  an  official  ballot,  the  real  freedom  of  choice 
is  greatly  restricted,  as  was  evident  in  the  election  for  members  of 
congress  held  under  the  new  election  law  in  May  1914. 

In  the  selection  of  members  of  the  lower  house  the  recent  election 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

RIVERSIDE 


102 


The  Federal  System  of  the  Argentine  Republic 


law  introduced  a  system  of  minority  representation  under  which  the 
voter  selects  a  certain  proportion  of  the  candidates  listed  on  a  general 
ticket,  in  accordance  with  Table  A,  column  1,  which  shows  the  num- 
ber of  deputies  to  be  elected,  while  column  2  shows  the  number  of  can- 
didates for  whom  the  voter  is  permitted  to  cast  ballot. 

The  total  number  of  members  of  the  lower  house  is  at  present  120, 
distributed  as  shown  in  Table  B. 


Table  A. 


Table  B. 


Col.  1. 

Col.  2. 

1 

1 

2 

2 

3 

2 

4 

3 

5 

4 

6 

4 

7 

5 

8 

6 

9 

6 

10 

7 

11 

8 

12 

8 

13 

9 

14 

10 

15 

10 

16 

11 

17 

12 

18 

12 

Province  or  city 

No. 

20 

28 

12 

9 

7 

11 

3 

5 

4 

3 

2 

3 

7 

4 

2 

Province  of  Buenos  Aires 

Santa  Fe  

Entre  Rios 

Corrientes 

San  Luis 

Santiago  del  Estero  . 
Mendoza 

La  Rioja 

Catamarca 

Tucuman 

Salta 

Jujuy 

The  organization  of  the  upper  house  or  senate  is  governed  by 
article  46  of  the  constitution,  which  reads  as  follows: 

"The  senate  shall  consist  of  two  senators  from  each  province  elected  by 
a  plurality  of  votes  by  the  respective  legislatures.  There  shall  be  also  two 
senators  for  the  capital,  who  shall  be  elected  in  the  same  way  as  the  presi- 
dent of  the  nation.    Each  senator  shall  have  one  vote." 

The  qualifications  for  members  of  the  senate  differ  from  those 
of  the  house.  For  membership  in  the  lower  house  there  are  but 
two  requisites,  namely,  an  age  requirement  of  25  3rears  and  the  pos- 
session of  Argentine  citizenship  for  a  period  of  at  least  four  years. 
Senators,  on  the  other  hand,  must  be  30  years  of  age,  have  been  cit- 
izens of  Argentina  for  at  least  six  years  and  have  an  annual  income 
of  not  less  than  2,000  "pesos  fuertes"  ($1,941). 

The  senate  is  composed  of  two  members  from  each  province 
elected  by  the  legislatures  thereof  and  two  members  from  the  capital 
city  (Buenos  Aires)  elected  in  the  same  manner  as  the  president, 
namely,  by  the  election  of  electors,  who,  in  their  turn,  select  the  two 
senators.  The  term  of  office  is  nine  years,  the  constitution  providing 
for  a  renewal  of  one-third  of  the  senate  every  three  years. 

Although  the  Argentine  senate  has  been  honored  by  the  member- 


The  Legislative  Authority  103 

ship  of  a  long  line  of  distinguished  men,  the  body  as  a  whole  has 
never  been  able  to  secure  for  itself  an  important  position  in  the 
Argentine  political  system.  We  have  had  occasion  several  times  to 
refer  to  the  subordinate  position  of  the  legislative  authority.  Not 
only  does  the  power  of  the  senate  suffer  because  of  this  fact,  but  its 
influence  is  further  reduced  by  reason  of  the  greater  confidence  of 
the  masses  in  the  lower  house.  The  fact  that  the  provincial  legis- 
latures are  often  under  the  dominion  of  the  provincial  governors  and 
that  the  latter  usually  enjoy  the  privilege  of  selecting  the  candidates 
whom  the  legislature  is  to  elect,  has  gradually  created  a  deeply  rooted 
conviction  that  the  senate  is  an  oligarchic  body  far  removed  from  the 
currents  of  public  opinion  and  impervious  to  its  influence. 

The  special  powers  granted  to  each  house  separately  are  compara- 
tively few.  To  the  chamber  of  deputies  belongs  the  exclusive  power 
to  originate  revenue  measures  and  measures  relating  to  military  con- 
scription. To  it  also  belongs  the  exclusive  power  to  institute  impeach- 
ment proceedings  against  the  president,  vice-president,  and  members 
of  the  cabinet,  against  members  of  both  houses,  justices  of  the  supreme 
court,  and  provincial  governors.  The  constitution  provides  (article  45) 
that  such  articles  of  impeachment  may  be  formulated  for  treason, 
bribery,  misuse  of  public  funds,  violation  of  the  constitution,  or  other 
offense  involving  punishment  by  death  or  long  period  of  penal  servi- 
tude. The  articles  of  impeachment  as  formulated  must  receive  the 
approval  of  two-thirds  of  the  members  present. 

To  the  senate  belongs  the  exclusive  power  of  trying  such  impeach- 
ments. When  organized  as  a  tribunal  for  this  purpose,  the  chief 
justice  of  the  supreme  court  presides;  a  vote  of  two-thirds  of  the 
members  present  is  necessary  for  conviction.  It  will  be  noted  that 
the  procedure  provided  for  in  impeachment  proceedings  is  identical 
with  that  prescribed  by  the  constitution  of  the  United  States. 

As  regards  the  sessions  of  the  congress,  the  constitution  provides 
that  a  regular  session  shall  be  held  each  year,  beginning  May  1  and 
ending  September  30  (article  55).  The  president  may,  however, 
either  extend  the  regular  session  or  convene  the  congress  in  extra 
session.  Whether  extending  the  regular  session  or  convening  in  extra 
session,  the  executive  has  steadfastly  maintained  that  the  congress 
must  limit  itself  to  the  purposes  for  which  convened.  As  is  well 
pointed  out  by  Matienzo,1  this  unusual  limitation  on  the  legislative 
authority  when  a  regular  session  is  extended  gives  to  the  president 
far-reaching  powers  of  control  when  the  congress  fails  to  complete  its 
legislative  program  at  the  regular  session.  As  this  is  of  almost  con- 
stant occurrence,  the  executive  is  in  a  position  to  force  upon  the 
attention  of  the  legislative  authority  the  measures  which  it  desires  to 
see  enacted.    As  a  rule,  what  occurs  at  the  sessions  of  the  Argentine 

1  El  Gobierno  Representative).     Op.  cit.,  p.  186. 


104  The  Federal  System  of  the  Argentine  Republic 

congress  is  that  the  early  months  are  devoted  to  a  general  discussion 
of  pending  measures  exclusive  of  the  appropriation  bills  and  the  end 
of  the  regular  session  arrives  without  final  action  on  the  budget.  The 
usual  procedure  is  the  extension  of  the  regular  session  for  the  sole 
purpose  of  considering  the  budget.  Time  and  again  the  members  of 
congress  have  requested  the  president  to  include  other  matters  for 
possible  consideration,  but  he  has  usually  refused  or  has  taken  the 
position  that  after  the  voting  of  the  budget  he  would  consider  the 
advisability  of  including  other  matters. 

The  legislative  powers  conferred  on  the  congress  contained  in 
article  67  of  the  constitution  are  as  follows: 

"  1.  To  legislate  in  regard  to  custom-houses,  and  to  establish  import 
duties,  which,  as  well  as  the  rates  of  appraisement  on  which  they  are  based, 
shall  be  uniform  throughout  the  nation;  it  being  thoroughly  understood,  how- 
ever, that  these  duties  and  all  other  taxes  of  national  character  are  payable 
in  the  currency  of  the  respective  provinces  in  their  exact  equivalent  value. 
And,  to  establish  likewise  export  duties  up  to  1866,  at  which  time  they  shall 
cease  to  be  either  national  or  provincial  taxes.1 

"2.  To  levy  direct  taxes  for  a  period  of  time  and  in  a  manner  propor- 
tionately equal  throughout  the  territory  of  the  nation,  whenever  the  defense 
of  the  country,  the  common  safety,  or  the  public  good  may  require  it. 

"3.  To  borrow  money  on  the  credit  of  the  nation. 

"4.  To  provide  for  the  use  and  disposition  of  the  national  lands. 

"  5.  To  establish  and  organize  at  the  capital  a  national  bank,  with 
branches  in  the  provinces,  with  power  to  issue  bank  notes. 

"  6.  To  make  arrangements  for  the  payment  of  the  national  debt,  both 
foreign  and  domestic. 

"  7.  To  appropriate  annually  the  money  necessary  to  meet  the  expendi- 
tures of  the  national  government,  and  to  approve  or  disapprove  the  accounts 
of  its  disbursement. 

"8.  To  grant  subsidies,  to  be  paid  out  of  the  national  treasury,  to  those 
provinces  whose  revenues,  according  to  their  budgets,  are  insufficient  to  meet 
their  ordinary  expenses. 

"9.  To  regulate  the  free  navigation  of  the  rivers  in  the  interior,  to  declare 
as  ports  of  entry  those  which  may  be  deemed  fit  for  that  purpose,  and  to 
establish  or  abolish  custom-houses.  But  the  custom-houses  for  foreign  com- 
merce, existing  in  each  province  at  the  time  of  its  coming  into  the  national 
union,  shall  not  be  abolished. 

"  10.  To  coin  money,  fix  the  value  thereof  and  that  of  foreign  coins,  and 
adopt  a  uniform  system  of  weights  and  measures  for  the  whole  nation. 

"  11.  To  enact  civil,  commercial,  penal,  and  mining  codes  without  en- 
croaching upon  the  local  jurisdictions,  the  provisions  (if  said  codes  to  be 
enforced  either  by  the  federal  or  provincial  courts,  according  ;is  the  matters 
or  persons  may  fall  under  their  respective  jurisdiction,  and  especially  to  enact 
general  laws  on  naturalization  and  citizenship  for  the  whole  nation,  based 
upon  the  principle  of  citizenship  by  nativity,  as  well  as  laws  on  bankruptcy, 
counterfeiting  of  money  and  forging  of  public  documents  of  the  state,  and  on 
the  establishment  of  trial  by  jury. 

"  12.  To  regulate  commerce  by  land  and  sea  with  foreign  countries,  and 
among  the  provinces. 

1  Words  in  italics  stricken  out  September  12,  1SG6. 


The  Legislative  Authority  105 

"13.  To  establish  and  regulate  the  post-offices  and  post-roads  of  the  nation. 

"14.  To  settle  finally  the  national  boundaries,  to  lix  those  of  the  prov- 
inces, to  create  new  provinces,  and  to  provide  by  special  laws  for  the 
organization,  administration,  and  government  of  the  national  territories, 
which  may  be  left  outside  the  limits  assigned  to  the  provinces. 

"  15.  To  provide  for  the  security  of  the  frontiers  and  for  the  preservation 
of  peaceful  intercourse  with  the  Indians,  and  to  promote  their  conversion 
to  Catholicism. 

"  16.  To  provide  for  all  that  conduces  to  the  prosperity  of  the  country, 
to  the  advancement  and  welfare  of  all  the  provinces,  and  to  the  advancement 
of  the  enlightenment  of  the  people,  by  prescribing  plans  for  general  and  uni- 
versity instruction  and  by  promoting  industrial  enterprise,  immigration,  the 
construction  of  railways  and  navigable  canals,  the  colonization  of  the  public 
lands,  the  introduction  and  establishment  of  new  industries,  the  importation 
of  foreign  capital,  and  the  exploration  of  the  interior  rivers,  by  protective 
laws  for  these  purposes,  by  concessions  of  privileges  for  a  limited  time,  and 
by  rewards  which  shall  act  as  an  encouragement. 

"  17.  To  establish  courts  inferior  to  the  supreme  court  of  justice;  to 
create  and  abolish  offices  and  to  fix  the  duties  of  the  same;  grant  pensions, 
decree  honors,  and  to  grant  general  amnesties. 

"  18.  To  accept,  or  refuse  to  accept  the  reasons  assigned  for  the  resig- 
nation of  the  president  or  vice-president  of  the  republic,  to  declare  that  the 
time  has  arrived  to  proceed  to  a  new  election,  to  count  the  returns  thereof, 
and  to  ascertain  the  result. 

"  19.  To  approve  or  reject  treaties  concluded  with  other  nations,  and  the 
concordats  entered  into  with  the  Apostolic  See,  and  to  make  rules  for  the 
exercise  of  ecclesiastical  patronage  throughout  the  nation. 

"  20.  To  admit  into  the  territory  of  the  nation  religious  orders  in  addition 
to  those  now  existing. 

"21.  To  authorize  the  executive  power  to  declare  war  or  make  peace. 

"22.  To  grant  letters  of  marque  and  of  reprisal  and  to  make  rules  con- 
cerning prizes. 

"  23.  To  fix  the  strength  of  the  land  and  naval  forces  in  times  of  peace  and 
of  war,  and  to  make  rules  and  ordinances  for  the  government  of  such  forces. 

"  24.  To  authorize  the  calling  out  of  the  militia  of  the  provinces  whenever 
the  execution  of  the  laws  of  the  nation,  the  suppression  of  insurrections,  or  the 
repelling  of  invasions  may  render  it  necessary.  To  provide  for  the  organi- 
zation, equipment,  and  discipline  of  such  militia,  and  for  the  administration 
and  government  of  the  part  thereof  which  may  be  employed  in  the  service  of 
the  nation,  leaving  to  the  provinces  the  power  to  appoint  the  proper  chiefs 
and  officers  of  their  respective  militias,  and  to  enforce  in  regard  to  them  the 
discipline  established  by  congress. 

"  25.  To  permit  the  introduction  of  foreign  troops  into  the  territory  of 
the  nation,  and  the  departure  therefrom  of  the  national  troops. 

"  26.  To  proclaim  a  state  of  siege  in  one  or  more  places  in  the  nation  in 
case  of  internal  disorder,  and  to  approve  or  suspend  the  state  of  siege 
declared  during  the  recess  of  congress  by  the  executive  power. 

"27.  To  exercise  exclusive  legislative  power  throughout  the  territory  of 
the  national  capital  and  in  all  other  places  acquired  by  purchase  or  cession  in 
any  province  for  the  construction  of  forts,  arsenals,  magazines,  or  other  useful 
establishments  of  national  utility. 

"  28.  To  make  all  laws  and  regulations  which  shall  be  necessary  for  carry- 
ing into  execution  the  foregoing  powers  and  all  other  powers  vested  by  this 
constitution  in  the  government  of  the  Argentine  nation." 


106  The  Federal  System  of  the  Argentine  Republic 

An  examination  of  the  powers  thus  conferred  shows  a  striking 
similarity  with  section  8,  article  I,  of  the  constitution  of  the  United 
States.  Comparing  the  two  instruments,  it  will  readily  be  seen  that 
the  Argentine  constitution  confers  wider  powers,  emphasizing  the 
nationalization  of  legislation  to  a  greater  extent  than  the  constitution 
of  the  United  States.  This  is  particularly  noticeable  in  the  provisions 
granting  to  the  congress  the  power  to  enact  national,  civil,  commercial, 
mining,  and  penal  codes. 

In  studying  the  Argentine  political  system  one  is  impressed  with 
the  fact  that  the  most  urgent  need  of  the  country  is  the  develop- 
ment of  an  organic  national  public  opinion.  Both  houses  of  congress 
contain  many  able  men  and  the  level  of  debate  is  probably  as  high 
as  in  any  representative  assembly  of  Europe  or  America.  The  absence 
of  an  organized  national  public  opinion  robs  the  assembly  of  that 
cohesion  and  control  which  the  formation  of  great  national  political 
parties  would  facilitate.  There  are  abundant  signs,  however,  of  a 
healthful  reaction  against  this  state  of  affairs.  Recent  years  have 
witnessed  several  attempts  at  the  formation  of  national  political 
parties  with  platforms  which  include  something  more  than  vague 
expressions  of  general  principles.  Concrete  problems  of  national 
importance  are  entering  into  these  platforms. 

The  primary  difficulty  is  the  indifference  of  the  mass  of  voters. 
Outside  of  Buenos  Aires  and  a  few  of  the  larger  urban  centers,  the 
people  are  but  beginning  to  take  an  active,  sustained,  and  consecutive 
interest  in  public  affairs.  Fortunately,  the  rising  generation  is  giving 
evidence  of  an  awakening  of  civic  pride  which  is  certain  to  have  a 
far-reaching  influence  on  the  political  life  of  the  country,  preparing 
the  way  for  the  development  of  national  political  parties,  which  will 
address  themselves  to  the  pressing  economic  and  social  problems 
confronting  the  country. 


CHAPTER  XI. 

THE  JUDICIARY. 

The  position  of  the  judiciary  in  the  Argentine  political  system 
has  received  but  little  attention  from  commentators  and  publicists; 
yet  there  is  probably  no  other  portion  of  the  system  which  has  received 
so  much  attention  on  the  part  of  travelers  and  foreign  commentators. 
There  has  been  for  many  years  a  widespread  belief  that  the  minor 
judiciary  (especially  the  justices  of  the  peace  in  the  several  provinces) 
was  subject  to  political  and  personal  influences.  There  is  no  doubt 
that  this  belief  has  been  one  of  the  factors  discouraging  immigration. 
Accounts  of  grave  injustices  done  to  settlers  and  of  long  delays  in 
securing  titles  to  their  lands  have  made  a  deep  impression  on  foreign 
opinion. 

Nor  is  this  impression  dispelled  in  speaking  with  the  people  of  the 
country.  Pervading  their  comments  on  the  judiciary  there  runs  a  note 
of  pessimism,  which  serves  to  strengthen  the  conviction  that  whatever 
the  merits  of  the  executive  and  legislative  branches  of  the  Argentine 
system,  the  judiciary  fails  to  command  the  complete  confidence  of 
the  masses.  It  is  only  after  long-continued  acquaintance  with  the 
details  of  judicial  organization  and  procedure  that  one  becomes 
convinced  of  the  injustice  of  this  estimate.  It  soon  becomes  clear 
that  a  considerable  portion  of  the  present  criticism  of  the  judiciary 
relates  to  a  period  which  the  country  has  happily  outgrown  —  a 
period  in  which  the  minor  judiciary  was  completely  subservient  to 
a  despotic  executive.  One  begins,  furthermore,  to  see  that  these  sweep- 
ing statements  overshoot  the  mark,  including  within  their  denuncia- 
tion both  the  healthy  and  the  weak  portions  of  the  system. 

In  any  examination  of  the  Argentine  judicial  system  it  must 
always  be  borne  in  mind  that  neither  the  historical  background  of 
Spanish  tradition  nor  the  early  political  development  of  the  country 
gives  evidence  of  the  existence  of  an  independent  judicial  authority 
sufficiently  strong  to  assert  itself  as  against  the  executive.  On  the 
contrary,  the  history  of  Spain  during  the  eighteenth  century  is  a  record 
of  the  complete  subordination  of  the  judiciary  to  executive  control. 
The  problem  confronting  the  people  of  Argentina  was  totally  differ- 
ent, therefore,  from  that  with  which  the  people  of  the  United  States 
had  to  deal.  In  the  course  of  the  eighteenth  century  the  English 
courts  had  succeeded,  after  a  long  struggle,  in  emancipating  them- 
selves from  the  direct  control  of  the  crown  and  had  become  the 
guardians  of  the  liberties  of  the  people  as  against  executive  tyranny. 

107 


108  The  Federal  System  of  the  Argentine  Republic 

The  United  States,  therefore,  inherited  a  system  in  which  the  founda- 
tions for  the  development  of  an  independent  judiciary  had  been  laid. 
In  spite  of  this  fact,  a  long  struggle  between  the  executive  and  the 
judiciary  ensued  which  for  a  time  placed  the  prestige  of  the  latter  in 
serious  peril.  Mewed  in  this  light,  it  is  not  surprising  to  find  the  early 
history  of  Argentina  replete  with  instances  of  judicial  subservience, 
but  it  is  equally  true  that  the  last  twenty-five  years  have  witnessed 
marked  changes  both  in  the  character  of  the  judges  and  in  their  at- 
titude toward  executive  interference. 

The  organization  and  jurisdiction  of  the  federal  judiciary !  follow 
closely  the  plan  outlined  in  the  constitution  of  the  United  States.  Ar- 
ticle 94  of  the  Argentine  constitution  is  similar  to  section  1,  article  3, 
of  the  constitution  of  the  United  States.  It  provides  that:  "The  ju- 
dicial power  of  the  nation  shall  be  vested  in  a  supreme  court  of  justice 
and  in  the  inferior  tribunals  which  the  congress  may  establish  within 
the  national  territory."  The  constitution  of  1853  (article  91)  provided 
for  a  supreme  court  of  nine  justices,  but  an  amendment  passed  in 
1860  broadened  the  discretionary  power  of  congress  with  reference 
to  the  number  of  justices.  Pursuant  to  the  powers  thus  granted  the 
Argentine  congress  has  established,  in  addition  to  the  supreme  court, 
district  courts  and  federal  courts  of  appeal.  The  judges  of  all  these 
courts  hold  office  during  good  behavior.  The  ability  of  the  federal 
judges  is,  as  a  rule,  of  a  considerably  higher  order  than  that  of  the 
provincial  judges.  This  is  due  to  greater  care  in  selection,  to  the 
greater  professional  distinction  that  attaches  to  a  federal  judgeship, 
to  the  greater  stability  of  tenure,  and  to  the  better  salaries  paid  the 
federal  judiciary.  The  people  also  show  far  greater  confidence  in  the 
integrity  of  the  federal  judiciary.  The  people  of  Argentina  are  accus- 
tomed to  indulge  in  unsparing  criticism  of  public  officials  and  there  are 
constantly  afloat  rumors  with  reference  to  the  approachability  of  this 
or  that  judge.  It  is  exceedingly  difficult  for  a  foreigner  to  judge  of 
the  value  of  such  rumors.  The  impartial  inquirer  soon  reaches  the 
conclusion  that  most  of  these  rumors  have  no  real  foundation  in  fact 
and  that  the  federal  judiciary,  with  a  few  unfortunate  exceptions, 
deserves  the  confidence  which  it  now  enjoys. 

As  regards  the  jurisdiction  of  the  federal  courts,  the  constitution 
of  1853  went  far  beyond  the  constitution  of  the  United  States.  In 
article  97  it  gave  to  the  federal  courts  cognizance  not  only  of  all 
controversies  included  within  section  2,  article  3,  of  the  constitution  of 
the  United  States,  but  added  thereto  four  important  classes  of  cases, 
namely: 

1.  Those  arising  between  the  authorities  of  a  province. 

2.  Those  arising  between  a  province  and  any  of  its  citizens. 

1  Cf.  the  valuable  work  recently  published  by  Borchard,  "  Bibliography  and  Guide  to 
Argentine  law." 


The  Judiciary  10!) 


3.  Appeals  from  the  ecclesiastical  courts  which  at  the  time  of  the 

adoption   of   the   constitution   enjoyed   jurisdiction   over   cases 
involving  marriage  and  separation  proceedings. 

4.  All  cases  arising  under  the  national  civil,  commercial,  penal,  and 

mining  codes. 

It  will  be  remembered  that  during  the  first  seven  years  after  the 
adoption  of  the  constitution  of  1853  the  province  of  Buenos  Aires 
maintained  its  independence  of  the  confederation  and  that  the  national 
convention  of  1860  was  called  for  the  purpose  of  determining  the 
conditions  under  which  this  province  should  be  incorporated  into  the 
union.  The  situation  was  a  critical  one  and  involved  nothing  less  than 
the  political  future  of  the  country. 

At  this  convention  the  delegates  of  the  province  of  Buenos  Aires 
made  three  demands  with  reference  to  the  jurisdiction  of  the  federal 
courts  as  conditions  prerequisite  to  its  entry  into  the  union.  In  the 
first  place  they  demanded  that  the  procedure  with  reference  to  all 
cases  arising  under  the  national  codes  be  determined  by  the  provinces 
and  that  the  jurisdiction  thereunder  be  assigned  to  the  provincial 
courts;  secondly,  that  the  federal  tribunals  should  not  be  permitted 
to  take  cognizance  of  disputes  arising  between  the  public  authorities  of 
the  provinces;  and  thirdly,  that  the  provision  with  reference  to  ap- 
peal to  federal  tribunals  from  the  decisions  of  ecclesiastical  courts 
be  eliminated.  Not  only  were  all  these  proposals  accepted,  but  the 
convention  went  one  step  further  and  removed  from  the  jurisdiction 
of  federal  tribunals  all  cases  arising  between  a  province  and  its 
citizens. 

The  former  article  97  of  the  constitution,  now  article  100,  after 
the  acceptance  of  these  amendments,  reads  as  follows: 

"The  supreme  court  and  the  inferior  courts  of  the  nation  shall  try  and 
decide  all  cases,  not  enumerated  in  clause  11  of  article  67,  which  arise  under 
the  provisions  of  this  constitution,  the  laws  of  the  nation,  or  treaties  with 
foreign  powers;  in  cases  concerning  ambassadors,  public  ministers,  and  foreign 
consuls;  in  cases  of  admiralty  and  maritime  jurisdiction;  in  controversies  to 
which  the  nation  is  a  party;  in  cases  which  arise  between  two  or  more  prov- 
inces, between  one  province  and  citizens  of  another  province,  between  citizens 
of  different  provinces,  and  between  a  province  or  its  citizens  and  a  foreign 
state  or  its  citizens." 

With  reference  to  the  jurisdiction  over  cases  arising  under  the 
national  codes,  the  amendment  provides  that  the  existence  of  such 
codes  shall  not  be  construed  to  remove  cases  arising  thereunder  from 
the  jurisdiction  of  the  provincial  courts,  but  that  all  questions  of 
jurisdiction  as  between  federal  and  provincial  courts  be  determined 
by  the  status  of  the  parties  to  the  suit  or  of  the  matter  in  litigation. 
If,  for  instance,  a  case  arises  under  the  civil  code  between  citizens  of 
different  provinces  or  between  citizens  of  a  province  and  an  alien, 
recourse  may  be  had  to  the  federal  courts,  but  if  the  same  suit  arises 


110  The  Federal  System  of  the  Argentine  Republic 

between  citizens  of  the  same  province  the  provincial  courts  alone  can 
take  cognizance. 

The  amendments  adopted  in  1860  have  been  severely  criticized 
by  many  of  the  leading  publicists,  who  point  out  that  the  jurisdiction 
of  the  provincial  courts  over  cases  arising  under  the  national  codes 
has  destroyed  the  possibility  of  securing  uniformity  in  interpreta- 
tion and,  owing  to  a  widespread  lack  of  confidence  in  the  provincial 
courts,  has  served  to  make  these  codes  less  effective  than  they  other- 
wise would  have  been.  Every  student  of  the  Argentine  political 
system  must  be  impressed  with  the  justice  of  the  criticism.  Further- 
more, the  removal  from  federal  jurisdiction  of  cases  arising  between 
a  province  and  its  citizens  has  worked  serious  injustice  in  a  great 
number  of  instances  because  of  the  difficulty  of  enforcing  claims 
against  a  province  in  the  local  courts,  where  a  removal  to  the  federal 
forum  would  assure  impartial  consideration  of  the  matter  in  dispute. 

All  the  changes  above  referred  to  are  traceable  to  the  reaction 
against  the  nationalizing  tendencies  of  the  constitution  of  1853, 
which  took  place  at  the  time  of  the  incorporation  of  the  province  of 
Buenos  Aires  into  the  union.  This  tendency  was  further  empha- 
sized a  few  years  later  (act  of  September  14,  1863)  by  a  successful 
attempt  to  remove  from  federal  jurisdiction  one  of  the  most 
important  classes  of  cases  deeply  affecting  the  business  interests  of 
the  country.  Profiting  by  the  then  prevailing  spirit  of  sectionalism, 
this  law  placed  bankruptcy  proceedings  within  the  jurisdiction  of 
the  provincial  courts.  The  legal  provisions  relating  to  bankruptcy, 
instead  of  being  made  the  subject  of  a  special  law  as  contemplated 
by  the  constitution  (article  67,  section  11)  are  contained  in  the  com- 
mercial code.1  In  the  absence  of  a  national  bankruptcy  act,  it  was 
within  the  power  of  the  congress  to  place  these  matters  under  the 
jurisdiction  of  the  provincial  courts,  although  the  commercial  interests 
of  the  country  suffered  thereby.  In  one  provision,  however,  the  law 
goes  beyond  the  constitutional  powers  of  congress,  namely,  in  giving 
to  the  provincial  courts  jurisdiction  in  bankruptcy  proceedings  irre- 
spective of  the  nationality  or  domicile  of  the  parties  thereto.  This  is 
plainly  in  contradiction  with  the  provision  of  article  100,  which  gives 
to  the  federal  courts  jurisdiction  in  suits  arising  between  citizens  of 
different  provinces.  It  is  generally  agreed  that  the  only  effective 
remedy  for  the  present  unsatisfactory  situation  is  the  passage  of  a 
national  bankruptcy  act  with  exclusive  jurisdiction  in  the  federal 
courts. 

The  provincial  courts,  taken  as  a  whole,  represent  the  most 
unsatisfactory  portion  of  the  Argentine  political  system.  This  is 
particularly  true  of  the  minor  judiciary  —  the  justices  of  the  peace 
and  the  courts  of  first  instance  —  which  concerns  most  closely  the 

1  Maticnzo,  El  Gobierno  Representative,  op.  cit.,  p.  319. 


The  Judiciary  111 


security  and  welfare  of  the  mass  of  the  people.  The  political  con- 
siderations which  determine  the  appointments,  together  with  the 
low  salaries  attached  thereto,  make  it  impossible  to  secure  men  of  the 
high  standing  which  the  positions  require.  The  situation  is  further 
complicated  by  the  attempts  in  certain  of  the  provinces  to  exert 
executive  pressure  on  the  courts.  The  immediate  remedy  would  seem 
to  be  the  extension  of  the  jurisdiction  of  the  federal  courts,  but  it 
is  hardly  likely  that  the  spirit  of  sectionalism  will  be  sufficiently 
overcome  to  make  this  possible.  As  commercial  and  industrial  inter- 
ests grow  in  importance,  the  present  anomalies  of  judicial  jurisdiction 
are  certain  to  disappear.  But  even  after  the  improvement  of  the 
jurisdictional  division  between  federal  and  provincial  tribunals,  there 
will  remain  in  the  provincial  courts  most  of  the  cases  affecting  the 
rights  of  the  masses. 

As  regards  the  procedure  both  in  the  federal  and  provincial  courts, 
one  can  not  help  but  regard  it  as  exceedingly  cumbersome  when  com- 
pared either  with  American  or  European  practice.  There  is  practically 
no  oral  procedure;  everything  must  be  reduced  to  writing,  including 
the  testimony  of  witnesses.  Every  page  of  testimony  in  civil  cases 
must  be  written  on  stamped  paper,  furnished  by  the  government  at  the 
rate  of  44  cents  per  page.  In  civil  suits,  the  burden  of  expense  on 
the  poor  is  so  heavy  that  they  are  often  compelled  to  suffer  injustice 
rather  than  hazard  the  little  they  have  by  embarking  on  a  lawsuit. 
In  criminal  cases  the  long  and  cumbersome  procedure  is  the  cause  of 
much  unnecessary  delay.  Trial  by  jury  is  unknown  and  the  judge  is 
compelled  to  reach  a  decision  through  the  reading  of  a  great  mass  of 
depositions.  In  many  cases  he  has  never  seen  the  witnesses  whose 
testimony  he  is  called  upon  to  consider,  and  is,  therefore,  unable 
to  weigh  properly  the  personal  equation  entering  into  the  situa- 
tion. Testimony  in  criminal  cases,  in  fact  the  entire  preliminary 
preparation  of  a  case,  rests  with  a  judge  of  first  instance,  known  as 
the  "juez  de  instruccion,"  who  prepares  what  is  designated  as  the 
"sumario"  of  the  case.  Before  him  the  accused  is  taken  immedi- 
ately after  his  arrest,  and  before  he  has  had  the  benefit  of  counsel 
is  submitted  to  a  most  searching  interrogatory.  He  is  then  confronted 
with  such  witnesses  as  the  judge  is  disposed  to  call.  During  the 
period  immediately  following  arrest,  ranging  from  24  to  72  hours, 
according  to  the  discretion  of  the  "juez  de  instruccion,"  the  accused 
is  not  permitted  either  the  benefit  of  counsel  or  allowed  any  com- 
munication whatsoever  with  the  outside  world.  After  this  period 
of  "incomunicado"  expires  his  counsel  may  call  witnesses,  who  are 
examined  by  the  judge.  In  all  these  proceedings  the  prosecuting 
attorney,  as  well  as  counsel  for  the  defense,  plays  a  subordinate  part, 
every  step  in  the  proceeding  being  directed  by  the  court.  The  case 
having  been  thus  fully  prepared,  all  the  papers  are  forwarded  to  the 


112  The  Federal  System  of  the  Argentine  Republic 

judge  of  the  criminal  court,  who  may  call  further  witnesses  or  recall 
those  whose  testimony  is  before  him. 

The  impression  gained  in  talking  with  Argentine  judges  and  jurists 
is  that  they  are  unalterably  opposed  to  the  introduction  of  trial 
by  jury,  which  they  believe  would  lead  to  a  complete  breakdown  in 
the  administration  of  the  criminal  law.  They  point  to  the  unpre- 
paredness  of  the  people  for  such  a  system  and  are  convinced  that 
with  a  jury  it  would  be  impossible  to  secure  convictions.  In  the  rural 
districts  trial  by  jury  would,  in  their  opinion,  lead  to  factional  feuds 
and  become  a  mere  mockery  of  justice. 

In  spite  of  this  markedly  conservative  attitude  of  both  bench 
and  bar,  it  is  clear  that  the  simplification  of  both  criminal  and  civil 
procedure  and  the  introduction  of  oral  proceedings  in  criminal  prose- 
cutions would  subserve  the  ends  of  justice.  Probably  the  greatest 
immediate  need  in  the  administration  of  justice  in  Argentina  is  a 
simple,  rapid,  and  inexpensive  procedure  in  civil  suits  when  the 
amount  in  controversy  is  relatively  small.  The  great  strides  made 
in  this  respect  in  Europe  and  in  the  United  States  have  had  no  echo 
in  Argentina.  The  present  cumbersome,  expensive  system  weighs 
heavily  on  the  small  creditor,  depriving  him  of  the  means  of 
effectively  asserting  his  rights. 

The  question  of  the  attitude  of  the  courts  toward  the  constitu- 
tionality of  statutes  has  received  but  little  attention  from  Argentine 
commentators.  It  has  been  taken  for  granted  that  in  this  respect 
the  courts  would  follow  a  course  similar  to  that  taken  by  the  judi- 
ciary in  the  United  States.  It  is  surprising,  therefore,  to  find  so 
few  instances  in  Argentine  jurisprudence  in  which  the  courts  have 
undertaken  to  declare  unconstitutional  either  the  acts  of  the  congress 
or  those  of  the  provincial  legislatures.  It  is  true  that  the  federal 
supreme  court  has  not  hesitated  to  announce  its  adherence  to  the 
jurisprudence  of  the  supreme  court  of  the  United  States  and  in  a 
number  of  notable  instances  to  declare  acts  of  congress  unconstitu- 
tional. One  is  impressed,  however,  with  the  fact  that  compared  with 
the  United  States  these  declarations  of  unconstitutionality  are  rare 
and  exceptional. 

The  explanation  is  to  be  found  in  the  reluctance  of  the  citizen  to 
institute  proceedings  involving  a  declaration  of  unconstitutionality. 
The  respect  for  authority,  inherited  from  Spain,  is  so  strong  that  the 
citizen  prefers  to  abide  by  the  law  rather  than  test  its  constitution- 
ality. It  is  also  true  that  the  provincial  courts  have  shown  great 
reluctance  to  declare  acts  of  the  provincial  legislatures  null  and  void. 
This  is  due,  in  part,  to  the  fact  that  the  exercise  of  such  a  power  is 
unusual  in  countries  of  Spanish  tradition  and  in  part  to  the  influence' 
which  the  provincial  executive  exerts  over  the  judicial  department 
of  the  government. 


CHAPTER  XII. 
CONSTITUTIONAL  GUARANTEES  TO  PERSON  AND  PROPERTY. 

It  is  an  interesting  fact,  throwing  considerable  light  on  conditions 
existing  immediately  before  the  movement  for  emancipation  from 
the  mother  country,  that  one  of  the  first  measures  adopted  by 
the  provisional  government  established  after  the  first  revolutionary 
movement  was  to  provide  protection  for  the  personal  rights  of 
the  citizen.  The  regulations  of  October  22,  1811,  promulgated  by  the 
revolutionary  junta,  were  aimed  at  the  greatest  abuse  of  the  colonial 
regime,  viz.,  arbitrary  imprisonment.  Article  9  of  these  regulations 
established  a  kind  of  habeas  corpus  proceeding  through  a  direct  appeal 
to  the  junta  by  any  person  detained  for  a  period  in  excess  of  forty- 
eight  hours. 

The  various  so-called  statutes  and  provisional  regulations  which 
preceded  the  earliest  written  constitutions  of  the  republic  laid  special 
emphasis  on  the  protection  of  personal  and  property  rights.  As 
early  as  1811  (November  22)  a  provisional  statute  was  promulgated 
intended  to  assure  the  liberty  of  the  press.  In  fact,  this  statute  simply 
reproduced  the  text  of  a  decree  of  October  26  of  the  same  year. 

On  November  23,  1811,  the  junta  issued  a  decree  placing  further 
safeguards  about  the  liberty  of  the  individual.  Unfortunately,  the 
established  administrative  practice  was  such  that  these  safeguards 
proved  of  little  avail  when  subjected  to  the  stress  and  strain  of 
those  troublous  times.  The  wide  gap  between  precept  and  practice 
did  not  diminish  the  desire  to  formulate  an  increasingly  elaborate 
series  of  provisions  intended  to  safeguard  the  rights  of  the  citizen. 

In  his  work  on  "Constitutional  Guarantees,"  '  Alcorta  points  out 
that  the  statute  of  May  5,  1815,  contained  a  special  chapter  intended 
to  safeguard  individual  rights  and  freedom  of  the  press.  The  same 
purpose  was  manifest  in  the  provisional  regulations  of  December  3, 
1817,  sections  4  and  7  of  which  contain  elaborate  provisions,  intended 
to  prevent  arbitrary  action  by  administrative  officials. 

With  the  first  formal  constitutional  organization  of  the  country 
in  1819,  the  question  of  constitutional  guarantees  assumes  a  position 
even  more  important  than  during  the  preceding  period.  Under  the 
inspiration  of  the  elaborate  declaration  of  rights  contained  in  the 
French  constitution,  the  framers  of  the  constitution  of  1819  devoted 

1  Las  Guarantias  Constitucionales,  by  Amancio  Alcorta.    Buenos  Aires,  1897. 

113 


114  The  Federal  System  of  the  Argentine  Republic 

an  entire  chapter  to  personal  rights  relating  to  "life,  reputation, 
liberty,  security,  and  prosperity."  In  the  constitution  of  1826  l  the 
provisions  of  the  constitution  of  1819  relating  to  personal  and 
property  rights  were  reproduced  with  a  few  minor  amendments.  The 
constitution  of  1853,  with  the  amendments  of  1860,  preserves  the 
general  plan  of  constitutional  guarantees  introduced  ha  1S19.2 

In  every  discussion  of  constitutional  guarantees  the  question 
that  first  presents  itself  is  the  nature  of  the  mechanism  placed  at  the 
disposal  of  the  citizen  to  prevent  arbitrary  arrest  or  detention,  and  the 
remedies  at  his  service  when  such  detention  does  take  place.  Does 
the  Argentine  system  provide  for  a  procedure  similar  or  comparable 
to  the  habeas  corpus  of  British  and  American  jurisprudence? 

The  national  constitution  makes  no  mention  either  of  habeas 
corpus  or  other  procedure  to  be  followed  in  case  of  unjustifiable 
detention,  but  simply  provides,  in  article  18,  that  no  one  shall  "be 
arrested  except  by  an  order  in  writing  of  the  proper  authority."  The 
provincial  constitutions  are  more  specific  with  reference  to  personal 
rights.  Thus  the  constitution  of  the  province  of  Buenos  Aires  con- 
tains the  following  provisions: 

"  Art.  17.  Every  person  arrested  or  detained  for  any  reason  whatsoever 
shall  have  the  right  to  be  informed  of  the  reason  for  such  detention  within 
twenty-four  hours. 

"  Art.  18.  Any  person  arrested  or  detained  may  demand,  either  in  person 
or  through  a  third  party,  that  he  be  brought  before  the  nearest  judge  having 
jurisdiction  over  this  class  of  cases.  The  order  of  arrest  having  been  issued 
by  such  judge,  the  accused  can  not  be  held  for  a  period  exceeding  twenty- 
four  hours,  unless  he  shall  be  notified  as  to  the  cause  of  his  detention  by 
a  court  having  jurisdiction  over  the  case.  Every  judge  to  whom  the  petition 
for  release  is  made  or  to  whom  recourse  is  sought  for  the  protection 
guaranteed  under  article  17,  must  take  action  within  twenty-four  hours  of 
presentation  of  petition;  failing  to  do  so,  he  shall  be  subject  to  a  fine  of  a 
thousand  pesos.1  In  those  cases  in  which  the  petition  is  granted  by  the 
judge,  any  official  who  continues  to  detain  the  accused,  or  fails  to  comply 
with  the  order  of  the  court  within  the  period  designated,  shall  be  subject 
to  a  fine  of  five  hundred  pesos.  In  all  such  cases,  however,  the  court  shall 
see  to  it  that  the  accused  is  released." 

Both  the  national  and  the  provincial  codes  of  criminal  procedure 
have  endeavored  to  make  effective  these  constitutional  provisions. 
Article  617  of  the  national  code  provides: 

"Every  person  shall  have  the  right  to  a  writ  of  protection4  against  any 
order  or  proceeding  of  a  public  official,  the  effect  of  which  is  to  restrict,  without 
proper  authority,  the  liberty  of  the  individual. 

"The  writ  of  protection  shall  also  issue  whenever  any  provincial  authority 
shall  arrest  or  detain  a  member  of  the  national  congress  or  any  other  national 
official  or  person  commissioned  by  the  national  government." 

■  Articles  159  ff.  "  Alcorta,  op.  cit..  p.  18. 

*  The  equivalent  of  the  Argentine  peso  is  44  cents  American  money  in  normal  times. 

4  The  term  "writ  of  protection"  is  used  as  the  equivalent  of  "writ  of  habeas  corpus." 


Constitutional  Guarantees  to  Person  and  Proper!)/  115 

Similar  provisions  are  to  be  found  in  the  provincial  constitutions, 
regulating  even  in  greater  detail  the  issuance  of  the  writ  of  protection 
and  providing  severe  penalties  for  the  failure  of  the  courts  to  comply 
with  the  requirements  of  the  code. 

In  spite  of  the  attempt  to  give  to  the  citizen  the  fullest  protection 
in  the  maintenance  of  his  personal  rights,  the  legal  history  of  Argen- 
tina clearly  shows  that  but  little  use  has  been  made  of  the  writ. 
The  reasons  for  this  failure  to  accomplish  the  purposes  for  which  it 
was  intended  are  threefold: 

First.  The  reluctance  of  the  individual  citizen  to  assert  his  rights  as 
against  the  public  authority. 

Second.  The  narrow  interpretation  given  to  the  provisions  of  the  con- 
stitution and  to  the  articles  of  the  criminal  code. 

Third,  The  failure  of  public  officials  fully  to  comply  with  the  letter  and 
spirit  of  constitutional  and  legal  requirements,  and  the  reluctance  of  the 
courts  to  insist  on  their  strict  enforcement. 

The  history  of  the  writ  of  habeas  corpus  in  Argentina  clearly  dem- 
onstrates the  difficulties  involved  in  making  effective  a  procedure  for 
the  protection  of  individual  rights  in  a  country  in  which  any  attempt 
on  the  part  of  the  individual  citizen  to  resist  or  even  question  the 
acts  of  the  constituted  authorities  is  looked  upon  as  partaking  of  the 
nature  of  insubordination.  The  inherited  ideas,  as  well  as  the  political 
traditions  of  the  country,  have  served  to  strengthen  the  principle  of 
authority  and  to  discourage  any  attempt  on  the  part  of  the  individual 
citizen  to  nullify  the  acts  of  public  officials. 

The  fact  that  so  little  use  has  been  made  of  the  writ  of  protection 
is  to  be  attributed  to  these  circumstances  rather  than  to  any  funda- 
mental defects  in  the  procedure  established  by  the  code.  It  is  true 
that  in  some  of  the  provinces  the  interpretation  given  to  the  writ  has 
been  so  narrow  as  to  deprive  it  of  much  of  its  value.  Thus  the  su- 
preme court  of  the  province  of  Buenos  Aires  has  held  that  the  writ 
can  issue  only  as  against  public  officials  who  are  without  power  of  arrest 
or  detention.  In  other  words,  whenever  the  power  of  arrest  or  deten- 
tion does  exist  the  writ  of  protection  can  not  be  used  to  determine 
whether  it  has  been  legally  exercised.1 

It  is  important,  furthermore,  to  bear  in  mind  that  the  value  of 
the  guarantees  against  illegal  detention  has  been  seriously  diminished 
in  the  provinces  by  the  failure  of  the  courts  to  comply  strictly  with 
the  requirements  of  the  law.  Varela,2  in  his  excellent  commentary 
on  the  constitution  of  the  province  of  Buenos  Aires,  refers  to  the  fact 
that  the  absence  of  adequate  penal  sanctions  to  assure  the  observance 
of  the  constitutional  requirements  with  reference  to  the  detention  of 
accused  persons  has  led  the  courts  to  disregard  many  of  the  provisions, 
particularly  the  requirement  of  article  17,  which  prescribes  that  within 

>  Decision  in  cases  of  Aloy  and  Echevarria,  decided  July  15,  1914. 

»  Plan  de  Reformas  a  la  Constitucion  de  Buenos  Aires,  by  Luis  V.  Varela,  2  vols.    La  Plata,  1907. 


116  The  Federal  System  of  the  Argentine  Republic 

24  hours  of  his  detention  the  accused  shall  be  informed  of  the  nature 
of  the  accusation. 

The  further  enumeration  of  personal  and  property  rights  in  the 
constitution  of  Argentina  is  contained  in  articles  14  to  20  inclusive, 
which  read  as  follows: 

"Art.  14.  All  the  inhabitants  of  the  nation  shall  enjoy,  subject  to  the 
laws  regulating  their  exercise,  the  following  rights,  to  wit :  to  work  and  engage 
in  any  lawful  industry;  to  navigate  and  engage  in  commerce;  to  petition  the 
authorities;  to  enter,  remain  in,  travel  through,  or  leave  the  Argentine  terri- 
tory; to  publish  their  own  ideas  through  the  press  without  previous  censorship; 
to  use  and  dispose  of  their  property;  to  associate  together  for  useful  purposes; 
freely  to  profess  their  religion,  and  to  teach  and  to  study. 

"Art.  15.  There  shall  be  no  slaves  in  the  Argentine  nation.  Those  few 
now  existing  therein  shall  become  free  as  soon  as  this  constitution  becomes 
law.  The  indemnifications  which  may  have  to  be  paid  in  consequence  of 
this  declaration  shall  be  regulated  by  special  law.  Contracts  involving  the 
purchase  or  sale  of  persons  shall  be  criminal  acts,  for  which  the  contracting 
parties,  as  well  as  the  notary  or  official  before  whom  they  are  executed, 
shall  be  responsible.  Slaves  introduced  in  any  way  whatever  into  the  coun- 
try shall  become  free  by  the  mere  fact  of  entrance  into  the  territory  of  the 
republic. 

"  Art.  16.  The  Argentine  nation  does  not  recognize  prerogatives  of  blood 
or  birth;  personal  privileges  and  titles  of  nobility  shall  not  exist  therein.  All 
of  its  inhabitants  are  equal  before  the  law,  and  their  eligibility  to  office  shall 
depend  exclusively  upon  their  fitness.  Equality  shall  be  the  basis  of  taxation 
and  of  all  public  burdens. 

"  Art.  17.  Private  property  is  inviolable,  and  no  inhabitant  of  the  nation 
shall  be  deprived  of  it  except  by  judicial  decision  founded  on  law.  Con- 
demnation of  property  for  a  public  purpose  shall  be  authorized  by  law,  and 
indemnification  previously  made.  Congress  alone  shall  have  power  to  impose 
the  taxes  referred  to  in  article  4.  No  personal  service  shall  be  required  of 
anyone,  except  when  ordered  by  law  or  by  judicial  decision  founded  on  law. 
Authors  and  inventors  shall  be  the  exclusive  owners  of  their  works,  inven- 
tions, or  discoveries,  for  the  length  of  time  established  by  law.  Confiscation 
of  property  is  forever  stricken  out  of  the  Argentine  penal  code.  No  armed 
body  shall  make  requisitions  or  demand  assistance  of  any  kind. 

"Art.  18.  No  inhabitant  of  the  nation  shall  be  punished  except  after 
trial  and  conviction,  under  laws  anterior  to  the  commission  of  the  offense; 
nor  shall  he  be  tried  by  special  commissions,  or  removed  from  the  jurisdic- 
tion of  the  courts  which,  under  the  laws  in  force  at  the  time  when  the 
offense  was  committed,  should  take  cognizance  of  his  case.  No  one  shall 
be  compelled  to  testify  against  himself;  nor  shall  anyone  be  arrested  except 
by  virtue  of  a  written  order  of  the  proper  authority.  The  defense  of  person 
and  of  rights  before  the  courts  shall  be  inviolable.  Domicile,  as  well  as 
epistolary  correspondence  and  private  papers,  shall  be  inviolable,  but  a  law 
.^-liall  determine  in  what  cases  and  under  what  circumstances  the  former  may 
be  entered,  and  the  latter  seized.  The  penalty  of  death  for  political 
offenses,  torture  of  all  kinds,  and  whipping  are  abolished.  The  national  jails 
shall  be  healthful  and  clean,  intended  for  the  safe-keeping  and  not  for  the 
punishment  of  the  offender.-  detained  therein,  and  any  measure  which,  under 
color  of  precaution,  tends  to  inflict  upon  the  prisoners  more  hardships  than 
those  required  for  their  security  shall  cause  the  judge  authorizing  it  to  be 
held  responsible. 


Constitutional  Guarantees  to  Person  and  Property  117 

"  Art.  19.  Private  actions  which  in  no  way  offend  public  order  or  morals, 
and  are  not  injurious  to  a  third  party,  shall  be  reserved  to  God  alone,  and  are 
not  subject  to  the  authority  of  the  state.  No  inhabitant  of  the  nation  shall 
be  bound  to  do  what  is  not  ordered  by  law,  nor  shall  he  be  forbidden  to  do 
what  it  docs  not  prohibit. 

"Art.  20.  Aliens  shall  enjoy  in  the  territory  of  the  nation  all  the  civil 
rights  of  citizens.  They  may  exercise  their  trade,  business,  or  profession; 
own,  buy,  and  transfer  real  estate;  navigate  the  rivers  and  coasts;  practice 
freely  their  religion;  make  wills,  and  contract  marriage  in  conformity  with 
the  law.  They  shall  not  be  compelled  to  become  citizens  or  to  pay  forced 
extraordinary  taxes.  They  may  obtain  naturalization  by  residing  two  con- 
secutive years  in  the  nation,  but  the  authorities  may  shorten  this  period  in 
favor  of  the  applicant  who  affirms  and  proves  that  he  has  rendered  services 
to  the  republic." 

These  provisions  indicate  how  fully,  and  with  what  wealth  of  de- 
tail, the  framers  of  the  constitution  of  1853  endeavored  to  secure  to 
every  inhabitant  of  the  republic,  whether  citizen  or  alien,  the  widest 
possible  field  of  individual  liberty.  Comparison  with  the  constitu- 
tion of  the  United  States  shows  that  substantive  rights  are  enumerated 
with  far  greater  detail  in  the  Argentine  constitution.  On  the  other 
hand,  the  Argentine  constitution  contains  fewer  provisions  establishing 
the  procedure  for  the  assertion  of  individual  rights.  As  the  enumer- 
ation of  rights  is  of  little  value  without  the  assurance  of  a  definite 
procedure  for  their  maintenance,  it  is  important  in  this  connection  to 
examine  the  provisions  which  safeguard  the  substantive  rights  assured 
in  articles  14  to  20  inclusive.  In  this  connection  we  must  first  con- 
sider a  provision  for  which  there  is  no  parallel  in  the  constitution  of 
the  United  States,  to  wit,  article  29,  which  provides: 

"  Congress  shall  not  have  power  to  grant  to  the  national  executive,  or  the 
provincial  legislatures  the  power  to  grant  to  the  provincial  governors  extra- 
ordinary powers,  or  the  whole  of  the  public  authority,  or  to  assent  to  sub- 
missions or  supremacy  through  which  the  lives,  the  honor,  or  the  property 
of  Argentines  may  be  placed  at  the  mercy  of  governments,  or  of  any  person 
whatsoever.  Acts  of  this  character  shall  be  utterly  void,  and  shall  render 
their  authors,  or  those  who  consent  to  them  or  authorize  them  with  their 
signatures,  liable  to  be  called  to  account  and  to  be  punished  as  infamous 
traitors  to  their  country." 

The  unusual  character  of  this  provision  reflects  a  long  and  cruel 
chapter  in  the  history  of  Argentine  political  development.  The  his- 
tory of  the  South  American  republics  contains  a  number  of  instances 
in  which  the  provisions  of  written  constitutions  have  been  set  aside 
and  all  constitutional  guarantees  to  person  and  property  nullified  by 
the  delegation  to  the  national  executive  of  the  sum  total  of  all  public 
authority,  or,  as  it  is  termed  in  Spanish,  "la  suma  del  poder  pu- 
blico." Such  delegation  of  power  has  usually  taken  place  in  moments 
of  grave  crises  brought  about  either  through  domestic  insurrection 
or  foreign  invasion.  These  powers,  once  granted,  have  rapidly  be- 
come the  instruments  of  tyranny  and  oppression,  sweeping  ruthlessly 


118  The  Federal  System  of  the  Argentine  Republic 

aside  all  guarantees  to  personal  and  property  rights.  The  definiteness 
of  the  prohibition  contained  in  article  29,  and  the  extreme  penalties 
prescribed  for  violations  thereof,  reflect  the  fears  inspired  by  many 
years  of  bitter  experience. 

The  prominent  position  given  to  constitutional  guarantees  in  the 
Argentine  constitution,  a  position  far  more  significant  than  in  the 
constitution  of  the  United  States,  raises  a  question  of  fundamental  im- 
portance, namely,  under  what  conditions  may  constitutional  guarantees 
be  suspended? 

The  constitution  of  the  United  States,  it  will  be  recalled,  makes  no 
provision  for  the  suspension  of  constitutional  guarantees  other  than 
the  writ  of  habeas  corpus.    Article  I,  section  9,  paragraph  2,  provides: 

"The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended  unless 
when  in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it." 

In  the  famous  case  of  ex  parte  Milligan,1  the  supreme  court  of  the 
United  States  laid  down  the  following  principles: 

"It  is  claimed  that  martial  law  covers  with  its  broad  mantle  the  pro- 
ceedings of  this  military  commission.  The  proposition  is  this:  that  in  a  time 
of  war  the  commander  of  an  armed  force  (if,  in  his  opinion,  the  exigencies 
of  the  country  demand  it,  and  of  which  he  is  to  judge)  has  the  power,  within 
the  fines  of  his  military  district,  to  suspend  all  civil  rights  and  their  remedies, 
and  subject  citizens  as  well  as  soldiers  to  the  rule  of  his  will;  and  in  the 
exercise  of  his  lawful  authority  can  not  be  restrained,  except  by  his  superior 
officer  or  the  president  of  the  United  States. 

"If  this  position  is  sound  to  the  extent  claimed,  then  when  war  exists, 
foreign  or  domestic,  and  the  country  is  subdivided  into  military  depart- 
ments for  mere  convenience,  the  commander  of  one  of  them  can,  if  he  chooses, 
within  his  limits,  on  the  plea  of  necessity,  with  the  approval  of  the  ex- 
ecutive, substitute  military  force  for  and  to  the  exclusion  of  the  laws,  and 
punish  all  persons,  as  he  thinks  right  and  proper,  without  fixed  or  certain 
rules. 

"The  statement  of  this  proposition  shows  its  importance;  for,  if  true, 
republican  government  is  a  failure,  and  there  is  an  end  of  liberty  regulated 
by  law.  Martial  law,  established  on  such  a  basis,  destroys  every  guarantee 
of  the  constitution,  and  effectually  renders  the  'military  independent  of,  and 
superior  to,  the  civil  power,'  —  the  attempt  to  do  which  by  the  king  of  Great 
Britain  was  deemed  by  our  fathers  such  an  offense  that  they  assigned  it  to 
the  world  as  one  of  the  causes  which  impelled  them  to  declare  their  inde- 
pendence. Civil  liberty  and  this  kind  of  martial  law  can  not  endure  together; 
the  antagonism  is  irreconcilable;  and,  in  the  conflict,  one  or  the  other  must 
perish. 

"It  follows,  from  what  has  been  said  on  this  subject,  that  there  are 
occasions  when  martial  rule  can  be  properly  applied.  If  in  foreign  invasion 
or  civil  war  the  courts  are  actually  closed,  and  it  is  impossible  to  administer 
criminal  justice  according  to  law,  then,  on  the  theatre  of  active  military 
operations,  where  war  really  prevails,  there  is  a  necessity  to  furnish  a  sub- 
stitute for  the  civil  authority,  thus  overthrown,  to  preserve  the  safety  of  the 
army  and  society;  and  as  no  power  is  left  but  the  military,  it  is  allowed  to 
govern  by  martial  rule  until  the  laws  can  have  their  free  course.    As  necessity 

>  4  Wallace,  2. 


Constitutional  Guarantees  to  Person  and  Property  11!) 

creates  the  rule,  so  it  limits  its  duration;  for,  if  this  government  is  continued 
after  the  courts  are  reinstated,  it  is  a  gross  usurpation  of  power.  Martial 
rule  can  never  exist  where  the  courts  are  open,  and  in  the  proper  and  unob- 
structed exercise  of  their  jurisdiction." 

The  suspension  of  constitutional  guarantees  in  the  Argentine 
system  is  accomplished  by  what  is  known  as  the  declaration  of  a 
"  state  of  siege."  The  term  "  estado  de  sitio"  corresponds  to  the  French 
"Hat  de  siege"  and  the  German  " Rhine  Belagerungszustand,"  but 
has  no  precise  equivalent  in  American  jurisprudence.  Four  articles  of 
the  Argentine  Constitution  deal  directly  with  the  subject,  viz. : 

"  Art.  23.  In  case  of  domestic  disturbance  or  foreign  attack,  endangering 
the  observance  of  this  constitution  and  the  safety  of  the  authorities  created 
by  it,  a  state  of  siege  shall  be  proclaimed  in  the  province  or  territory  wherein 
public  order  is  disturbed,  and  the  constitutional  guaranties  shall  be  suspended 
within  its  limits.  But  during  this  suspension,  the  president  of  the  republic 
shall  have  no  power  by  himself  to  condemn  anyone  or  inflict  punishment. 
His  power  shall  be  limited  in  such  cases,  so  far  as  persons  are  concerned,  to 
arrest  or  transfer  them  from  one  place  in  the  country  to  another,  should 
they  not  prefer  to  leave  the  Argentine  territory. 

"Art.  53.  The  senate  may  also  authorize  the  president  of  the  nation  to 
declare  a  state  of  siege  in  one  or  more  places  in  the  republic  in  case  of  foreign 
invasion. 

"Art.  67,  Clause  26.  Congress  shall  have  power  to  proclaim  a  state 
of  siege  in  one  or  more  places  in  the  nation  in  case  of  internal  disorder, 
and  to  approve  or  suspend  the  state  of  siege  declared  during  the  recess  of 
congress  by  the  executive  power. 

"Art.  86,  Clause  19,  should  read  as  follows: 

"With  the  consent  of  the  senate,  and  in  case  of  foreign  invasion,  he  may 
declare  one  or  more  places  in  the  nation  to  be  in  a  state  of  siege  for  a  limited 
time.  In  case  of  internal  troubles,  he  may  exercise  such  power  only  during 
the  recess  of  Congress,  for  such  power  belongs  to  that  body.  The  President 
shall  exercise  this  power  within  the  limitations  established  by  Art.  23." 

It  will  be  seen  from  these  provisions  that  the  constitution  con- 
templates the  existence  of  a  "state  of  siege"  under  at  least  two 
different  conditions:  (1)  foreign  invasion;  (2)  domestic  insurrection. 
In  addition  to  these  two  express  delegations  of  exceptional  govern- 
mental authority,  the  practice  of  the  country  has  been  to  justify 
the  declaration  of  a  state  of  siege  when  domestic  order  is  menaced, 
even  when  there  have  been  no  overt  acts  of  violence. 

The  situation  which  arises  with  the  declaration  of  a  state  of  siege 
involves  consequences  of  a  far  more  serious  character  than  the  sus- 
pension of  the  privilege  of  the  writ  of  habeas  corpus  in  the  United 
States.  It  means  that,  for  the  time  being,  neither  personal  nor  property 
rights  remain  inviolate  as  against  the  action  of  the  federal  authorities. 
As  tersely  stated  by  an  eminent  Argentine  jurist: 1 

"The  residence,  correspondence,  and  private  papers  of  the  citizen  may 
be  seized  and  searched  without  previous  judicial  order;   the  right  of  public 

1  Manual  de  la  Constitucion  Argentina,  p.  268,  por  Joaquin  V.  Gonzales. 


120  The  Federal  System  of  the  Argentine  Republic 

meeting,  of  association,  the  right  to  earn'  arms,  the  freedom  of  speech  and 
of  the  press,  all  these  liberties  may  be  denied  by  the  public  authority  to 
the  extent  and  according  to  the  standards  which  it  may  deem  necessary  for 
the  preservation  or  the  reestablishment  of  the  public  peace."  l 

It  is  evident  that  unless  these  far-reaching  governmental  powers 
were  carefully  safeguarded  through  constitutional  restrictions  they 
might  readily  become  the  instruments  of  tyranny  and  oppression. 
In  order  to  avoid  this  danger,  the  Argentine  constitution  provides  the 
following  safeguards : 

First.  The  "state  of  siege"  can  be  declared  only  by  the  federal  govern- 
ment, the  provincial  authorities  enjoying  no  such  power.  This  principle 
is  the  result  of  constitutional  interpretation  of  commentators  rather  than 
specific  formulation.  The  question  has  never  been  squarely  decided  by  the 
federal  supreme  court.  That  the  federal  constitution  is  silent  with  reference 
to  the  exercise  of  this  power  by  the  provincial  governments  would  not,  of 
itself,  be  conclusive,  inasmuch  as  the  power  might  be  reserved  to  the  prov- 
inces by  their  respective  constitutions.  The  silence  of  the  provincial 
constitutions  with  reference  to  the  declaration  of  a  "state  of  siege,"  together 
with  the  fact  that  such  exceptional  governmental  powers  can  not  be  presumed 
to  exist  independent  of  specific  constitutional  delegation,  would  seem  to  be 
conclusive  with  reference  to  the  absence  of  provincial  authority  to  suspend 
the  constitutional  guarantees.  It  is  furthermore  important  to  note  the 
significant  historical  fact  that  when,  acting  under  the  provisions  of  the 
constitution  of  1853,  the  federal  congress  examined  and  revised  the  provincial 
constitutions  in  order  to  bring  them  into  harmony  with  the  national  constitu- 
tion, the  provisions  of  the  constitutions  of  Mendoza,  La  Rioja,  San  Luis, 
and  Corrientes  providing  for  the  declaration  of  a  "state  of  siege"  were 
eliminated.5 

Second.  In  the  exercise  of  the  power  to  suspend  the  guarantees  to 
person  and  property,  the  constitution  places  definite  limitations  on  the 
federal  authorities. 

The  constitution  (articles  23,  53,  67,  and  86)  distinguishes  between  two 
broad  classes  of  instances  in  which  a  "state  of  siege"  may  be  declared,  viz., 
foreign  invasion  and  domestic  disturbance. 

In  case  of  foreign  invasion,  the  senate  is  given  authority  (article  53)  to 
authorize  the  president  to  suspend  the  constitutional  guarantees.  \Vhen, 
however,  the  danger  arises  because  of  domestic  disturbance,  the  suspension 
must  be  made  by  act  of  congress.  If,  however,  that  body  is  not  in  session, 
the  president  is  empowered  to  declare  a  "state  of  siege."  Under  the  pro- 
visions of  article  67,  clause  26.  congress,  upon  assembling,  is  given  the  power 
either  to  approve  or  suspend  the  measures  adopted  by  the  president. 

The  reasons  for  giving  to  the  president  wider  powers  in  case  of 
foreign  invasion  will  be  evident  at  a  glance.  Need  of  immediate 
action  in  periods  of  international  conflict  makes  prompt  action 
indispensable,  so  much  so,  in  fact,  that  were  the  constitution  silent 
on  this  point,  the  national  executive  would  probably  exercise  this 
authority  as  part  of  the  general  war  power. 

There  has  been  considerable  discussion  amongst  Argentine  jurists 

1  Decisions  of  the  Supreme  Court  of  the  Argentine  Republic,  2d  series,  vol.  3.  p.  405. 
1  National  Laws  Nos.  36.  37,  39,  and  97;   also  Goniale*,  op.  cit.,  p.  264. 


Constitutional  Guarantee*  to  Person  and  Property  121 

as  to  the  precise  scope  of  the  congressional  powers  contained   in 
article  67,  clause  26,  of  the  constitution,  which  reads  as  follows: 

"To  proclaim  a  state  of  siege  in  one  or  more  places  in  the  nation  in  case 
of  internal  disorder,  and  to  approve  or  suspend  the  state  of  siege  declared 
during  the  recess  of  congress  by  the  executive  power." 

In  the  main,  the  discussion  has  hinged  on  the  question  whether 
the  words  "approve  or  suspend"  include  the  right  to  disapprove, 
and  thus  retroactively  nullify,  as  far  as  such  nullification  is  possible, 
the  acts  of  the  executive  performed  during  the  recess  of  congress. 
This  question  has  never  been  squarely  presented  to  the  supreme 
court,  but  the  overwhelming  body  of  opinion  is  definitely  opposed 
to  so  broad  an  interpretation  of  congressional  powers.1 

It  will  be  noted  that  the  provisions  of  the  Argentine  constitution 
with  reference  to  the  suspension  of  constitutional  guarantees  are 
more  specific  and  more  definite  than  the  provision  of  the  constitution 
of  the  United  States  relating  to  the  suspension  of  the  privilege  of  the 
writ  of  habeas  corpus.  The  relative  powers  of  the  national  executive 
and  legislative  authorities  are  far  more  clearly  defined  and  the  pos- 
sibility of  conflict  of  authority  correspondingly  reduced. 

A  further  limitation  on  the  exercise,  or  rather  on  the  consequences 
of  the  suspension  of  constitutional  guarantees  is  to  be  found  in  the 
latter  part  of  article  23,  which  reads  as  follows: 

"But  during  the  suspension  the  president  of  the  republic  shall  have  no 
power  by  himself  to  condemn  anyone  or  inflict  punishments.  His  power 
shall  be  limited  in  such  cases,  so  far  as  persons  are  concerned,  to  arrest  or 
transfer  them  from  one  section  of  the  national  territory  to  another  should 
they  not  prefer  to  leave  the  Argentine  territory." 

The  purpose  of  these  limitations  is  to  diminish  the  dangers  incident 
to  the  suspension  of  constitutional  guarantees  and  particularly  to  pre- 
vent, as  far  as  possible,  the  powers  granted  to  the  executive  from  being 
made  the  instruments  of  political  tyranny  and  personal  despotism. 
An  examination  of  the  instances  of  the  suspension  of  constitutional 
guarantees  in  Argentina  discloses  the  dominant  position  occupied 
by  the  national  executive  as  compared  with  the  legislative  authority.2 

The  first  instance  of  the  suspension  of  constitutional  guarantees 
after  the  adoption  of  the  federal  constitution  of  1853  is  to  be  found 
in  the  presidential  decree  of  September  1,  1854,  declaring  a  "state 
of  siege,"  for  a  period  of  thirty  days,  in  the  province  of  Corrientes. 
The  occasion  for  this  decree  was  the  invasion  of  the  province  by  a 
revolutionary  leader,  General  Caceres.  The  prompt  suppression  of 
the  internal  disturbance  led  to  the  restoration  of  the  constitutional 
guarantees  before  the  expiration  of  the  thirty  days,  viz.,  by  decree  of 

1  Alcorta,  Garantias  Constitucionales,  p.  23S  ff. 

1  The  material  upon  which  this  list  of  instances  of  the  suspension  of  constitutional  guarantees 

is  based  is  contained  in  the  work  of  Alcorta,  Garantias  Constitucionales,  pp.  ISO  to  186 

inclusive. 


1^2-2  The  Federal  System  of  the  Argentine  Eepublic 

September  11.  1S54;  upon  the  assembling  of  the  national  congress  in 
December  of  the  same  year  the  action  of  the  president  of  the  republic 
was  approved.1 

A  recurrence  of  domestic  disturbance  in  the  same  province  during 
the  following  year  (1855)  led  to  a  further  suspension  of  constitutional 
guarantees  for  a  period  of  thirty  days  by  decree  of  March  10, 1S55.  As 
in  the  preceding  instance,  the  early  termination  of  the  conflict  led  to  the 
restoration  of  the  constitutional  guarantees  by  decree  of  April  3,  1855.2 

The  war  of  the  Argentine  confederation  against  the  province  of 
Buenos  Aires  furnished  the  next  occasion  for  the  declaration  of  a  "state 
of  siege."  In  this  instance  a  peculiar  situation  arose  because  the 
national  congress  delegated  to  the  commander-in-chief  of  the  army, 
General  Urquiza,  the  power  to  suspend  the  constitutional  guarantees. 
Availing  himself  of  this  power,  General  Urquiza,  on  October  8,  1S59, 
suspended  the  constitutional  guarantees  in  the  city  of  Rosario  for  a 
period  of  thirty  days.  Although  this  suspension  was  approved  by 
executive  decree  of  October  10,  1859,  the  constitutionality  of  the 
procedure  is  open  to  serious  doubt.3 

Again,  during  the  civil  war  of  1801,  by  law  of  June  14  and  Sep- 
tember 19,  the  president  was  empowered  to  suspend  the  constitutional 
guarantees  in  the  district  of  Rosario,4  and  subsequently  in  such 
portions  of  the  territory  of  the  republic  as  he  might  deem  necessary.5 

With  the  revision  of  the  constitution  by  the  national  convention 
of  1800,  the  powers  of  the  president  with  reference  to  the  suspension 
of  constitutional  guarantees  were  further  limited  by  requiring  that 
in  all  cases  of  domestic  disturbance  the  declaration  of  a  state  of  siege 
should  first  receive  the  approval  of  the  national  congress  if  that  body 
be  in  session.  Under  the  constitutional  provision,  as  thus  amended, 
the  instances  of  suspension  of  guarantees  have  been  as  follows:6 

(a)  By  law  of  August  12,  1862,  the  congress  authorized  the  president 
to  suspend  the  constitutional  guarantees  in  the  province  of  Corrientes  for  a 
period  of  sixty  days.7 

(6)  The  Paraguayan  war  led  to  a  prolonged  suspension  of  constitutional 
guarantees.  During  the  recess  of  the  congress  the  president  declared  the 
entire  territory  of  the  republic  in  a  "state  of  siege."  Subsequently,  by  law 
of  May  19,  1865,  the  president  was  authorized  to  suspend  the  constitutional 
guarantees  for  such  period  as  he  might  deem  necessary,8  of  which  power  he 
availed  himself  by  executive  decree  of  June  9,  1868.9 

(c)  A  rebellion  in  the  province  of  Entre  Rfos,  led  by  the  famous  Lopez 
Jordan,  was  the  occasion  of  the  next  declaration  of  a  "state  of  siege"  in 
that  province  by  executive  decree  of  May  2,  1870,  approved  subsequently 
by  the  law  of  August  12,  1870.10 

1  Registro  National,  1854,  pp.  4S3.  491.  and  569.  •  Alcorta,  op.  cit..  pp.  184  to  187  inclu- 

•  Ibid.,  1855,  pp.  645  and  653.  sive. 

■  Ibid.,  1859.  pp.  38.  40,  197,  and  198.  7  Registro  National,  1862.  p.  140. 

«  Ibid..  1861.  p.  715.  *  Ibid.,  1865,  pp.  56  and  US 

'  Ibid.,  pp.  759  and  760.  »  Ibid.,  1868,  p.  17. 

10  Ibid.,  1870.  pp.  67  and  69. 


Constitutional  Uuarantrcs  to  Person  and  Properly  123 

'./)  The  conflict  with  the  province  of  Entre  Rfos  having  given  rise  to 
fears  that  the  same  would  involve  the  adjoining  provinces,  a  law  of  September 
24,  1870,  authorized  the  president  to  suspend  the  constitutional  guarantees 
in  these  provinces  for  a  period  of  sixty  days.1 

(e)  The  continuance  of  the  conflict  in  Entre  Rfos  again  made  necessary 
the  suspension  of  constitutional  guarantees  in  the  adjoining  provinces  of 
Corrientes  and  Santa  Fe  by  executive  decree  of  May  3,  1873,  subsequently 
approved  by  the  law  of  May  31.2 

(/)  The  same  conflict  led  to  a  declaration  of  a  "state  of  siege"  in  the 
provinces  of  Buenos  Aires,  Santa  Fe,  Entre  Rfos,  and  Corrientes  for  a  period 
of  sixty  days  by  the  law  of  September  24,  1874.3 

(g)  The  continuance  of  the  civil  war  finally  led  to  the  suspension  of 
constitutional  guarantees  throughout  the  republic  for  a  period  of  sixty  days 
by  the  act  of  September  26,  1874,4  subsequently  continued  for  a  period  of 
ninety  days  by  decree  of  November  24.6 

(h)  One  of  the  most  curious  instances  of  the  declaration  of  a  "state  of 
siege,"  and  one  which  gave  rise  to  bitter  criticism  of  the  government,  in- 
volved the  situation  created  in  the  city  of  Buenos  Aires  by  the  burning  of 
the  Jesuit  school  known  as  the  Colegio  del  Salvador.  The  president,  fearing 
that  this  disturbance  would  lead  to  anti-Jesuit  riots  throughout  the  province 
of  Buenos  Aires,  suspended  the  constitutional  guarantees  in  the  province  for 
a  period  of  thirty  days.6  The  action  of  the  president  led  to  a  prolonged 
discussion  in  the  senate  upon  the  assembling  of  the  congress,  but  with  no 
definite  results.  The  circumstances  indicate  that  there  was  not  the  slightest 
justification  for  the  declaration  of  a  "state  of  siege."  The  attack  was  a 
disturbance  of  local  order,  readily  repressed  by  the  police,  and  which  partook 
of  none  of  the  characteristics  of  a  revolutionary  movement  or  a  general 
domestic  disturbance.7 

(t)  A  revolutionary  movement  in  the  province  of  Corrientes  in  1876  led 
to  the  suspension  of  constitutional  guarantees  in  the  provinces  of  Corrientes, 
Entre  Rios,  Santa  Fe,  and  Buenos  Aires,  by  executive  decree  of  November 
27,  1876.7 

(j)  During  the  struggle  between  the  national  government  and  the  pro- 
vincial authorities  of  Buenos  Aires  in  1880,  the  president  declared  the 
entire  province  in  a  "state  of  siege,"  by  decree  of  June  1880,  for  a  period  to 
terminate  October  31  of  the  same  year.  The  action  of  the  president  was 
approved  by  the  act  of  congress  of  August  1880.8 

(k)  In  1890,  1892,  and  1893,  the  constitutional  guarantees  were  suspended 
for  brief  periods  owing  to  internal  disturbances. 

(I)  The  most  recent  instance  of  the  declaration  of  a  "state  of  siege" 
occurred  in  1909  as  a  result  of  the  throwing  of  a  bomb  in  the  Colon  theater 
of  Buenos  Aires.  This  outrage  was  attributed  to  the  anarchist  agitation 
which  had  been  carried  on  for  a  number  of  years.  The  purpose  which  the 
president  had  in  view  in  suspending  the  constitutional  guarantees  was  to 
facilitate  the  expulsion  of  undesirable  foreigners.  It  is  evident  that  the 
circumstances  in  no  way  justified  so  drastic  a  measure.  In  fact,  the  state 
of  siege  was  raised  after  a  short  period  and,  in  order  to  meet  similar  situations 
in  the  future,  the  congress  passed  a  law  governing  the  residence  of  aliens 
within  the  republic,  which  gives  to  the  national  executive  power  to  expel 
undesirable  foreigners. 

1  Registro  Nacional,  p.  117.  6  Ibid.,  p.  704. 

»  Ibid.,  1873,  pp.  199  and  227.  •  Decree  of  March  1,  1S75,  Rcgistro  Nacio- 

'  Ibid.,  1874,  p.  603.  nal,  1875,  p.  113. 

*  Ibid.,  p.  608.  7  Registro  Nacional.  1876,  p.  602. 

«  Ibid.,  1880,  pp.  208  and  226. 


124  The  Federal  System  of  the  Argentine  Republic 

In  studying  the  history  of  the  Argentine  Republic,  one  is  im- 
pressed with  the  frequent  use  of  the  power  to  suspend  the  constitu- 
tional guarantees,  and  especially  the  numerous  instances  in  which 
the  circumstances  in  no  way  justified  such  extreme  measures.  During 
the  period  immediately  following  the  adoption  of  the  constitution 
of  1853  this  tendency  is  to  be  explained  by  the  unsettled  political 
conditions.  The  absence  of  real  political  unity  and  the  constant 
conflicts  between  the  provinces  created  an  atmosphere  of  uncer- 
tainty and  suspicion  which  led  to  recourse  to  extreme  measures  at 
the  slightest  indication  of  domestic  unrest.  This  fact  explains  why 
disturbances  which  in  ordinary  circumstances  would  be  regarded 
as  simple  breaches  of  the  peace  were  immediately  interpreted  as 
partaking  of  the  character  of  domestic  insurrection,  requiring  the 
most  extreme  measures.  With  the  increasing  stability  of  political 
institutions,  the  occasion  for  a  declaration  of  a  "state  of  siege"  has 
been  less  and  less  frequent.  Furthermore,  there  is  a  growing  body 
of  public  opinion  opposed  to  the  use  of  such  measures.  The  broad 
interpretation  of  executive  power  which  characterized  the  early  con- 
stitutional development  of  the  country  will  hereafter  be  subjected  to 
closer  control  in  matters  affecting  the  fundamental  personal  and 
property  rights  of  the  citizen. 

In  concluding  this  discussion  of  constitutional  guarantees  it  is 
important  to  bear  in  mind  that  the  establishment  of  a  "state  of 
siege"  is  not  equivalent  to  the  declaration  of  martial  law.  Although 
there  exists  no  definite  Argentine  jurisprudence  on  this  subject,  the 
commentators,  almost  without  exception,  accept  the  principles  laid 
down  in  ex  parte  Milligan,1  in  which  the  court  held  that  martial  law 
implied  the  trial  of  citizens  by  military  commissions,  and  that  such 
procedure  can  only  be  justified  in  time  of  war,  in  the  actual  theater 
of  military  operations,  when  the  courts  are  closed,  and  it  is  impossible, 
therefore,  to  administer  justice  by  means  of  the  regularly  constituted 
tribunals. 

'  4  Wallace,  2. 


CHAPTER  XIII. 
LIBERTY  OF  SPEECH  AND  OF  THE   PRESS;    RELIGIOUS   LIBERTY. 

The  Argentine  constitution  makes  no  reference  to  the  freedom  of 
speech,  but  deals  with  the  liberty  of  the  press  in  the  following  terms: 

"Art.  32  The  federal  congress  shall  not  pass  any  law  restricting  the 
liberty  of  the  press,  or  subjecting  it  to  federal  jurisdiction." 

The  commentators  offer  no  explanation  for  the  failure  to  include 
the  freedom  of  speech,  particularly  in  view  of  the  fact  that  many  of 
the  provincial  constitutions  contain  specific  provisions  dealing  with 
this  subject.  The  consensus  of  opinion  seems  to  be  that  the  freedom 
of  speech,  while  not  specifically  mentioned,  is  to  be  considered  as 
enjoying  the  same  immunities  as  the  freedom  of  the  press.1 

The  prohibitions  of  article  32  are  directed  exclusively  against  the 
federal  government.  Not  only  is  the  national  congress  prohibited 
from  limiting  the  freedom  of  the  press,  but  it  is  also  prevented  from 
extending  the  jurisdiction  of  the  federal  tribunals  to  include  press 
offenses.  This  specific  prohibition  was  deemed  necessary  because  of 
a  possible  broad  interpretation  of  the  power  granted  to  the  national 
congress  (by  article  67,  clause  11)  to  enact  civil,  commercial,  penal, 
and  mining  codes.  In  order,  therefore,  to  ascertain  the  status  of 
freedom  of  speech  and  of  the  press  in  the  Argentine  constitutional 
system,  it  is  necessary  to  examine  the  political  institutions  of  the 
provinces.  It  will  probably  suffice  for  our  present  purposes  to  study 
the  situation  in  the  most  important  of  the  Argentine  provinces,  that 
of  Buenos  Aires. 

The  provincial  constitution  of  Buenos  Aires  contains  the  following 
provision  governing  freedom  of  speech  and  of  the  press: 

"Art.  11.  Freedom  of  speech  and  of  the  press  is  assured  to  all  the  in- 
habitants of  the  province.  Everyone  may  publish  his  views  and  opinions, 
being  responsible  for  the  abuse  of  this  privilege  before  a  jury  which  shall 
take  cognizance  both  of  law  and  fact  in  accordance  with  the  law  governing 
this  subject.  Such  legislation  must  not  contain  provisions  calculated  to 
prevent  the  free  expression  of  opinion  or  attempting  to  limit  the  same.  In 
all  prosecutions  affecting  freedom  of  speech  or  of  the  press,  the  jury  shall 
admit  the  truth  of  the  charge  as  justification  in  cases  having  to  do  with  the 
public  acts  of  officials,  or  with  the  political  capacity  of  officials  or  candidates 
for  public  office." 

While  this  constitutional  provision  would  seem  to  offer  ample  pro- 
tection, the  important  question  that  presents  itself  is  whether  the  legis- 

1  Gonzalez,  Manual  de  la  Constitucion  Argentina,  p.  166. 
145 


V2Q  The  Federal  System  of  the  Argentine  Republic 

lation  and  jurisprudence  of  the  province  have  given  full  effect  to 
the  intent  of  the  framers  of  the  constitution  of  Buenos  Aires. 

In  the  first  place,  it  is  important  to  note  that  the  provincial  legisla- 
ture has  failed  to  give  effect  to  the  provisions  of  article  11  of  the 
constitution.  Owing  to  the  fact  that  trial  by  jury  does  not  form  a 
part  of  the  civil  or  criminal  procedure  of  the  province,  a  special  law 
for  press  offenses  was  necessary.  No  such  law  having  been  passed, 
the  courts  have  found  themselves  compelled  to  extend  to  press  offenses 
the  provisions  of  the  national  civil  and  penal  codes  relating  to  libel. 
The  supreme  court  of  the  province  of  Buenos  Aires  has  established 
a  distinction  between  offenses  in  which  the  press  is  merely  the.  instru- 
ment through  which  a  third  person  utters  a  libel  and  press  offenses 
in  the  strict  sense  of  the  word,  such  as  the  printing  of  articles  con- 
trary to  public  decency  and  morals.1  The  former  are  eliminated 
from  the  class  of  press  offenses  and  are  dealt  with  in  accordance 
with  the  provisions  of  the  national  penal  and  civil  codes  relating  to 
libel.  As  regards  the  class  of  offenses  known  as  distinctively  press 
offenses,  the  courts,  in  the  absence  of  a  press  law  to  make  effective 
the  provisions  of  article  11  of  the  provincial  constitution,  have  dealt 
with  such  offenses  as  in  the  nature  of  torts,  governed  by  the  penal 
and  civil  codes. 

The  annals  of  journalism  in  the  province  of  Buenos  Aires,  as  well 
as  in  even*-  other  section  of  the  Argentine,  indicate  that  the  press 
enjoys  the  widest  possible  liberty  of  action.  Neither  the  provincial 
nor  the  national  government  has  attempted  anything  in  the  nature 
of  repressive  measures.  In  fact,  the  study  of  the  relations  existing 
between  the  public  authorities  and  the  press  in  all  parts  of  the  republic 
indicates  a  marked  tendency  on  the  part  of  the  government  to  placate 
the  public  press  through  the  distribution  of  favors.  It  is  a  noticeable 
fact  that  a  considerable  number  of  the  reporters  of  the  daily  papers 
occupy  minor  public  offices. 

RELIGIOUS  LIBERTY. 

The  provisions  of  the  Argentine  constitution  relating  to  religious 
liberty  are  as  follows: 

"Art.  2.  The  federal  government  supports  the  Roman  Catholic  Apos- 
tolic religion." 

"Art.  14.  All  the  inhabitants  of  the  nation  shall  enjoy,  subject  to  the  laws 
regulating  their  exercise the  right  freely  to  profess  their  religion.2 

"Art.  20.  Aliens  ....  shall  be  permitted  to  practice  freely  their  reli- 
gion. 

"Art.  67,  Clause  10.  The  national  congress  shall  have  power  to  approve 
or  reject  treaties  concluded  with  other  nations,  and  the  concordats  entered 
into  with  the  Apostolic  See,  and  to  make  rules  for  the  exercise  of  ecclesi- 
astical patronage  throughout  the  nation." 

1  Fallon  de  la  Suproma  Corte  de  la  Provincia  de  Buenos  Aires,  Serie  VII,  Tomo  IV,  pp.  215.  230. 


Liberty  of  Speech  and  of  the  Press;    Religious  Liberty  127 


In  addition  to  the  preceding  provisions,  articles  76  and  80  of  the 
constitution  prescribe  religious  qualifications  for  the  offices  of  president 
and  vice-president.     These  provisions  are  as  follows: 

"Art.  76.  To  be  elected  president  or  vice-president  of  the  nation  one 
must  have  been  born  in  the  Argentine  territory,  or  if  born  in  a  foreign  country 
be  the  son  of  a  native  citizen;  must  belong  to  the  Roman  Catholic  Apostolic 
Church;  and  must  have  all  the  other  qualifications  required  to  be  a  senator." 

"Art.  80.  On  entering  upon  the  discharge  of  their  duties  the  president 
and  the  vice-president  shall  take  an  oath,  which  shall  be  administered  to 
them  by  the  president  of  the  senate  (the  first  time  by  the  president  of 
the  Constitutional  Convention),  congress  being  in  session,  in  the  following 
terms: 

'  I, ,  do  swear,  before  God  our  Lord  and  these  Holy  Gospels, 

to  discharge  loyally  and  patriotically  the  office  of  president  (or  vice-president) 
of  the  nation,  and  faithfully  to  observe  and  to  cause  others  to  observe,  the 
constitution  of  the  Argentine  nation.  Should  I  fail  to  do  so,  may  God  and 
the  nation  require  it  of  me.'  " 

Another  section  of  the  constitution  commits  the  national  govern- 
ment to  the  extension  of  the  influence  of  the  Roman  Catholic  religion 
in  the  following  terms: 

"Art.  67,  Sect.  15.  The  congress  shall  have  power  to  provide  for  the 
security  of  the  frontiers  and  for  the  preservation  of  peaceful  intercourse 
with  the  Indians,  and  to  promote  their  conversion  to  Catholicism." 

These  provisions  indicate  that  while  the  freedom  of  religious 
worship  is  guaranteed  to  all  residents  of  the  republic,  the  national 
government  occupies  an  exceptional  position  toward  the  Roman 
Catholic  Church.  The  policy  of  the  government  toward  the  church 
has  its  roots  in  the  development  of  the  relation  between  church  and 
state  during  the  colonial  period,  during  which  the  king  of  Spain  and 
his  representative,  the  viceroy  of  the  river  Plate,  exercised  a  certain 
control  over  ecclesiastical  affairs  known  as  the  "patronato."  Pope 
Alexander  VI,  realizing  the  difficulties  incident  to  the  exercise  of  ef- 
fective control  over  ecclesiastical  affairs  in  the  far-away  regions  of 
the  viceroyalty  of  the  river  Plate,  recognized  in  the  papal  bull  of 
1508  a  condition  of  fact  which  had  existed  since  the  earliest  period 
of  Spanish  domination  in  the  southern  section  of  America,  namely, 
the  direct  control  of  the  king  of  Spain  and  of  his  representatives  over 
the  organization  of  the  church.1  This  included  not  only  the  appoint- 
ment of  bishops  and  minor  ecclesiastical  dignitaries,  but  also  the 
power  to  settle  disputes  or  conflicts  that  might  arise  within  the 
church.  Although  the  Vatican  regarded  the  king  of  Spain  as  its 
personal  representative  in  these  matters,  the  condition  of  fact  which 
developed  in  the  viceroyalty  of  the  river  Plate  was  the  supremacy 
of  the  civil  over  the  ecclesiastical  authority. 

With   the  beginning   of   the  movement   for   emancipation   from 

1  Cesareo  Chalcatano,  Patronato  Nacional  Argentine     Buenos  Aires,  1885. 


128  The  Federal  System  of  the  Argentine  Republic 

Spain,  the  leaders  of  the  revolution  show,  in  no  uncertain  terms, 
their  determination  to  enforce  the  supremacy  of  the  civil  over  the 
ecclesiastical  authority.  The  revolutionary  junta  of  1810  immediately 
issued  a  decree,  under  which  it  assumed  all  the  powers  of  the  "patro- 
nato"  over  the  church.1  In  order  further  to  clarify  the  situation,  the 
general  constituent  assembly  of  1813  issued  a  declaration  to  the  follow- 
ing effect: 

"The  united  provinces  of  the  river  Plate  are  free  from  all  ecclesiastical 
authority  established  beyond  the  confines  of  the  country."2 

The  national  congress,  which  succeeded  this  constituent  assembly, 
delegated  to  the  chief  executive,  then  known  as  the  supreme  director 
of  the  United  Provinces  of  the  River  Plate,  authority  to  make  appoint- 
ments to  fill  ecclesiastical  vacancies. 

It  will  be  noticed  that  these  decrees  and  declarations  were  not 
intended  to  bring  about  the  separation  of  church  and  state.  On  the 
contrary,  their  logical  result  was  to  make  the  support  of  the  Catholic 
Church  one  of  the  functions  of  the  newly  founded  republic.  The 
constitution  of  1819  declared  the  Catholic  religion  to  be  the  official 
state  religion,  and  in  various  provisions,  notably  articles  86  and  87, 
placed  all  ecclesiastical  dignitaries  in  the  category  of  state  officials. 

The  same  spirit  of  civil  control  over  ecclesiastical  affairs  char- 
acterizes the  series  of  national  constitutions  which  succeeded  that  of 
1819.  In  the  constitution  of  1826  we  find  a  new  element  of  control 
in  the  provision  giving  to  the  supreme  court  the  power  to  examine 
all  papal  bulls  and  encyclicals,  and  to  recommend  to  the  chief  execu- 
tive whether  such  documents  should  be  admitted  or  excluded. 

The  constitution  of  1853  incorporated  all  the  important  provisions 
of  the  previous  constitutions  asserting  the  supremacy  of  the  civil 
authority  and  defining  the  same  with  even  greater  definiteness.  In 
the  first  place,  it  is  to  be  noted  that  the  constitution  no  longer  speaks 
of  the  Catholic  religion  as  the  state  religion,  as  was  the  case  in  all 
the  previous  constitutions,  but  limits  itself  to  the  simple  statement: 
"The  federal  government  supports  the  Roman  Catholic  Apostolic 
Church"  (art.  2).  This  does  not  mean  that  the  national  government 
has  constituted  itself  an  instrument  of  religious  propaganda,  but 
simply  that,  as  a  logical  consequence  of  the  historical  control  exercised 
over  the  Catholic  Church,  the  national  treasury  defrays  the  expenses 
necessary  for  its  maintenance. 

The  most  important  powers  which  the  national  government  has 
reserved  to  itself  under  the  exercise  of  the  patronato  are: 

First.  —  The  presentation  to  the  Vatican  of  a  list  of  names  from 
which  the  bishop  of  each  diocese  must  be  selected.  This  list  is  made 
by  the  senate  and  presented  to  the  Vatican  by  the  president. 

1  See  Chalcatano,  op.  eit.,  p.  64.  *  Declaration  of  June  4,  1813. 


Liberty  of  Speech  and  of  the  Press;    Religious  Liberty         129 

Second.  —  The  control  over  papal  bulls  and  encyclicals.  This 
power  is  exercised  in  accordance  with  1  ho  provisions  of  article  86,  clause 
9,  which  gives  to  the  president  the  power,  with  the  advice  and  consent 
of  the  supreme  court,  "to  grant  or  refuse  promulgation  to  decrees  of  the 
councils,  bulls,  briefs,  and  rescripts  of  the  Supreme  Pontiff  at  Rome; 
but  said  grant  or  refusal  shall  be  made  by  law,  whenever  the  ecclesi- 
astical enactments  affected  by  either  action  contain  provisions  of  a 
general  or  permanent  character."  The  purpose  of  this  reservation 
is  to  assert  the  supremacy  of  the  civil  over  the  religious  authority 
and  to  prevent  the  promulgation  of  any  ecclesiastical  orders  not 
consonant  with  the  federal  constitution  or  laws. 

Third.  —  Although  strictly  speaking,  not  a  part  of  the  "patronato," 
the  power  of  the  national  government  over  ecclesiastical  affairs  is 
strengthened  by  the  provision  of  article  67,  clause  20,  which  gives  to 
the  congress  the  power  "to  admit  into  the  territory  of  the  Republic 
religious  orders  in  addition  to  those  now  existing."  By  implication, 
the  congress  has  the  power  to  exclude  such  religious  orders  as  it  may 
deem  undesirable.  This  control  is  further  strengthened  by  the  pro- 
hibition upon  the  provinces  contained  in  article  108,  which  forbids 
them  to  admit  new  religious  orders. 

The  foregoing  analysis  of  the  relation  existing  between  church 
and  state  in  Argentina,  while  indicating  a  relationship  totally  different 
from  that  existing  in  the  United  States,  does  not  mean  that  the 
freedom  of  religious  worship  is  limited  or  in  any  way  menaced.  It 
can  not  even  be  said  that  the  material  support  given  to  the  Catholic 
Church  has  strengthened  its  position.  On  the  contrary,  the  influence 
of  the  church  on  the  life  of  the  people  is  less  in  Argentina  than  in  the 
United  States.  In  fact,  one  of  the  purposes  which  the  framers  of  the 
earliest  Argentine  constitution  had  in  mind  in  perpetuating  the  "pa- 
tronato" system,  inherited  from  colonial  times,  was  to  curb  the  power 
of  the  church,  and  to  prevent,  as  far  as  possible,  the  participation  or 
interference  of  the  church  in  the  political  affairs  of  the  new-born 
nation.  This  determination  was  strengthened  by  the  realization  of  the 
fact  that  at  the  time  of  the  first  movement  for  independence  most  of 
the  higher  church  dignitaries  were  Spanish  sympathizers,  frowning 
upon  the  revolutionists  and  doing  everything  in  their  power  to  main- 
tain the  supremacy  of  Spain. 

The  study  of  the  present  situation  leads  one  to  the  conviction 
that  not  only  is  religious  liberty  fully  guaranteed  in  every  section  of 
Argentina,  but  also  that  the  problem  of  the  relation  between  church 
and  state  has  been  solved  in  a  manner  which  has  eliminated  the 
question  from  the  field  of  public  discussion.  The  question,  for  the 
time  being  at  least,  is  considered  as  settled. 


ISO  The  Federal  System  of  the  Argentine  Republic 


OTHER  PERSONAL  AND  PROPERTY  RIGHTS. 

As  regards  other  personal  and  property  rights,  it  is  unnecessary 
to  enter  into  any  detailed  discussion.  The  enumeration  of  these 
rights  is  contained  in  articles  14  to  19  inclusive,  which  read  as  follows: 

"Art.  14.  All  the  inhabitants  of  the  nation  shall  enjoy,  subject  to  the 
laws  regulating  their  exercise,  the  following  rights,  to  wit:  to  work  and  engage 
in  any  lawful  industry;  to  navigate  and  engage  in  commerce;  to  petition 
the  authorities;  to  enter,  remain  in,  travel  through,  or  leave  the  Argentine 
territory;  to  publish  their  own  ideas  through  the  press  without  previous 
censorship;  to  use  and  dispose  of  their  own  property;  to  associate  together 
for  useful  purposes;  freely  to  profess  their  religion,  and  to  teach  and  to  study. 

"Art.  15.  There  shall  be  no  slaves  in  the  Argentine  nation.  Those 
few  now  existing  therein  shall  become  free  as  soon  as  this  constitution  be- 
comes law.  The  indemnifications  which  may  have  to  be  paid  in  consequence 
of  this  declaration  shall  be  regulated  by  special  law.  Contracts  involving 
the  purchase  or  sale  of  persons  shall  be  criminal  acts,  for  which  the  con- 
tracting parties,  as  well  as  the  notary  or  official  before  whom  they  are 
executed,  shall  be  responsible.  Slaves  introduced  in  any  way  whatever  into 
the  country  shall  become  free  by  the  mere  fact  of  entrance  into  the  territory 
of  the  Republic. 

"Art.  16.  The  Argentine  nation  does  not  recognize  prerogatives  of 
blood  or  birth;  personal  privileges  and  titles  of  nobility  shall  not  exist  therein. 
All  of  its  inhabitants  are  equal  before  the  law,  and  their  eligibility  to  office 
shall  depend  exclusively  upon  their  fitness.  Equality  shall  be  the  basis  of 
taxation  and  of  all  public  burdens. 

"Art.  17.  Private  property  is  inviolable,  and  no  inhabitant  of  the 
nation  shall  be  deprived  of  it  except  by  judicial  decision  founded  on  law. 
Condemnation  of  property  for  a  public  purpose  shall  be  authorized  by  law, 
and  indemnification  previously  made.  Congress  alone  shall  have  power  to 
impose  the  taxes  referred  to  in  article  4.  No  personal  service  shall  be  re- 
quired of  anyone,  except  when  ordered  by  law  or  by  judicial  decision  founded 
on  law.  Authors  and  inventors  shall  be  the  exclusive  owners  of  their  works, 
inventions,  or  discoveries,  for  the  length  of  time  established  by  law.  Confisca- 
tion of  property  is  forever  stricken  out  of  the  Argentine  penal  code.  No 
armed  body  can  make  requisitions  or  demand  assistance  of  any  kind. 

"Art.  18.  No  inhabitant  of  the  nation  shall  be  punished  except  after 
trial  and  conviction,  under  laws  anterior  to  the  commission  of  the  offense; 
nor  shall  he  be  tried  by  special  commissions  or  removed  from  the  jurisdic- 
tion of  the  courts  which,  under  the  laws  in  force  at  the  time  when  the  offense 
was  committed,  should  take  cognizance  of  his  case.  No  one  shall  be  com- 
pelled to  testify  against  himself;  nor  shall  anyone  be  arrested  except  by 
virtue  of  a  written  order  of  the  proper  authority.  The  defense  of  person 
and  of  rights  before  the  courts  shall  be  inviolable.  Domicile,  as  well  as 
epistolary  correspondence  and  private  papers,  shall  be  inviolable,  but  a  law 
shall  determine  in  what  case  and  under  what  circumstances  the  former  may 
be  entered  and  the  latter  seized.  The  penalty  of  death  for  political 
offenses,  torture  of  all  kinds,  and  whipping  are  abolished.  The  national 
jails  shall  be  healthful  and  clean,  intended  for  the  safe-keeping  and  not  for 
the  punishment  of  the  offenders  detained  therein,  and  any  measure  which, 
under  color  of  precaution,  tends  to  inflict  upon  the  prisoners  more  hard- 
ships than  those  required  for  their  security  shall  cause  the  judge  authorizing 
it  to  be  held  responsible. 


Liberty  of  Speech  and  of  the  Press;    Religious  Libert//  131 

"  Art.  19.  Private  actions  which  in  no  way  offend  public  order  or  morals, 
and  are  not  injurious  to  a  third  parly,  shall  lie  reserved  to  (Jod  alone,  and  arc 
not  subject  to  the  authority  of  the  State.  No  inhabitant  of  the  nation  shall 
be  bound  to  do  what  is  not  ordered  by  law,  nor  shall  he  be  forbidden  to  do 
what  it  does  not  prohibit." 

It  is  important  to  note  that  these  guarantees  are  effective  not 
only  as  against  possible  encroachment  by  the  national  government, 
as  in  the  case  of  the  first  ten  amendments  to  the  constitution  of  the 
United  States,  but  are  equally  effective  as  against  hostile  provincial 
action.  In  this  respect,  therefore,  the  provisions  of  the  Argentine 
constitution  relative  to  personal  and  property  rights  enjoy  a  broader 
application  than  similar  provisions  in  the  constitution  of  the  United 
States. 

The  decades  immediately  succeeding  the  adoption  of  the  con- 
stitution of  1853,  when  the  country  was  still  unorganized  politically, 
witnessed  repeated  violations  of  these  provisions  by  the  federal  execu- 
tive; but  during  the  last  twenty-five  years  they  have  been  constantly 
and  faithfully  observed. 


BIBLIOGRAPHY. 

LIST  OF  WORKS  CONSULTED  IN  THE  PREPARATION  OF  THE 
FEDERAL  SYSTEM  OF  THE  ARGENTINE  REPUBLIC. 

Constitutional  Law. 

Actas  Legislativas  de  las  Primeras  Asamdleas  Nacionales  (3  vols.,  Buenos  Aires, 

1904). 
Alberdi,  Juan  Bautista.    Bases  y  Puntos  de  Partida  para  la  Organization  Politica  de 

la  Republica  Argentina  (Valparaiso,  1852). 
Alcorta,  Almancio.    Las  Garantias  Constitucionales  (2d.  ed.,  Buenos  Aires,  1897). 
American  Constitutions  (Published  by  the  Bureau  of  American  Republics,  2  vols.,  Wash- 
ington, 1906). 
Ayarraoaray,  Lucas.    La  Anarquia  Argentina  y  el  Caudillismo  (1  vol.,  8vo.,  Buenos 

Aires,  1904). 
Barraquero,  Julian.    Espiritu  y  Practica  de  la  Constitution  Argentina  (Buenos  Aires, 

1889). 
Calvo,  N.  A.    Anotaciones  a  la  Constitution  de  Estados  Unidos  y  concordancias  con  la 

Constitution  Argentina  (2  vols.,  8vo.,  Buenos  Aires,  1888). 
Carranza,  Artcro  B.     Constitution  National  y  Constituciones  Provinciales  Vigentes 

(Buenos  Aires,  1898). 

.     Anuario  Financiero  Administrativo  (3  vols.,  Buenos  Aires,  1904,  1905,  and  190(3). 

.     Digesto  Constitutional  Argentine  (3  ed.,  Buenos  Aires,  1905). 

Chacaltano,  Cesareo.    Patronato  National  Argentino  (Buenos  Aires,  1885). 
Convencion   Nacional  de   1898.     Antecedentes:    Congreso  Constituyente  de   1853  y 

Convenciones  Reformadoras  de  1860  y  1866.    (1  vol.,  8vo.,  Buenos  Aires,  1898). 
Debates  de  la  Convencion  Constituyente  de  Buenos  Aires,  1870-73  (Buenos  Aires, 

1877). 
Del  Valle,  Arist<5bulo.     Nociones  de  Derecho  Constitutional  (1  vol.,  8vo.,  Buenos 

Aires,  1897). 
Estrada,  Jose  Mantjel.    Curso  de  Derecho  Constitutional  (3  vols.,  Buenos  Aires,  1901). 
Frias,  Ladiblao,  S.    Trabajos  Legislativos  de  las  Primeras  Asambleas  Argentinas  desde 

la  Junta  de  1811  hasta  la  disolution  del  Congreso  en  1827  (3  vols.,  Buenos  Aires, 

1882-89)* 
Garcia,  Juan  Agustin.    Las  Ciencias  Sociales  Argentinas  (1  vol.,  8vo.,  Buenos  Aires,  1899). 

.     La  Ciudad  Indiana  (1  vol.,  8vo.,  Buenos  Aires,  1900). 

Gonzalez,  Joaquin  V.    La  Reforma  Electoral  (1  vol.,  8vo.,  Buenos  Aires). 

.    Manual  de  la  Constitution  Argentina  (Buenos  Aires,  1897). 

.     Debates  Constitucionales  (1898-1902)  (La  Plata,  1904). 

Irigoyen,  Bernardo  de.    Justicia  Nacional  (Buenos  Aires,  1903). 

Montes  de  Oca,  Manuel  Agusto.    Questiones  Constitucionales  (Buenos  Aires,  1899). 

.     Lecciones  de  Derecho  Constitutional  (2  vols.,  8vo.,  Buenos  Aires,  1902). 

Ramos-Mejia,  Francisco.    El  Federalismo  Argentino  (1  vol.,  8vo.,  Buenos  Aires,  1887). 
Saldias,  Adolfo.    Ensayo  sobre  la  Historia  de  la  Constitution  Argentine  (Buenos  Aires, 

1878). 
Sarmiento,  Domingo  Faustino.     Comentarios  de  la  Constitucion  de  la  Confederation 

Argentina  (Santiago  de  Chile,  1853). 
Urrutia,   Manuel  Alberto.     Intervenciones  del  Gobierno  Federal  en  las  Provincias, 

1853-1903  (Buenos  Aires,  1904). 
Varela,  Luis  V.    Estudios  sobre  la  Constitucion  de  Buenos  Aires  (1  vol.,  8vo.,  Buenos 

Aires,  1868). 
.     Estudios  sobre  la  Constitucion  National  Argentina.     Introduction  e  Interven- 
tion federal  en  las  Provincias  (Buenos  Aires,  18%). 

133 


134  The  Federal  System  of  the  Argentine  Republic 

HlSTORT. 

Calvo,  Carlos.    Anales  Historicos  de  la  revolution  de  la  America  Latina  (5  vols.,  8vo., 

Paris,  1864-67). 
Carrillo,  Joaquin.    Jujui  Provincia  Federal  Argentina  (Svo.,  Buenos  Aires,  1877). 
Estrada,  Jose  Mantel.    La  Politica  Liberal  bajo  la  tirania  de  Rosas  (8vo.,  Buenos  Aires, 

1873) 
.     Leceiones  sobre  la  Historia  de  la  Republica  Argentina  (2  vols.,  Svo.,  Buenos 

.Aires,  1898). 
Gonzalez,  Joaquin  V.     La  Tradicion  Nacional  (8vo.,  Buenos  Aires,  1888). 
Lopez,  Vicente  Fidel.     Historia  de  la  Republica  Argentina.    Su  Origen,  su  revolution 

y  su  desarrollo  politico  hasta  1852  (10  vols.,  8vo.,  Buenos  Aires,  1SS3-93). 
Mitre,  Bartolome.     Historia  de  Belgrano  (4th  ed.  3  vols.,  8vo.,  Buenos  Aires,  1887). 

.     Historia  de  San  Martin,  2d  ed.  (2  vols.,  8vo.,  Buenos  Aires,  1890). 

Pelliza,  Mariano  A.     La  Dictadura  de  Rosas  (1  vol.,  8vo.,  Buenos  Aires,  1894). 

.     Historia  Argentina  (5  vols.,  8vo.,  Buenos  Aires,  1895). 

.     Historia  de  la  Organization  Nacional  1852-62  (1  vol.,  8vo.,  Buenos  Aires,  1897). 

Quesada,  Ernesto.    La  Epoca  de  Rosas  (1  vol.,  8vo.,  Buenos  Aires,  1898). 
Quesada,  Vicente  G.    Estudios  Historicos  (2  vols.,  Svo.,  Buenos  Aires,  1863-4). 
Saldias,  Adolfo.    Historia  de  la  Confederation  Argentina.    Rosas  y  su  Epoca  (2d  ed., 

5  vols.,  8vo.,  Buenos  Aires,  1892) 
.     La  Evolution  Republicana  durante  la  Revolution  Argentina  (1  vol.,  S  vo.,  Buenos 

Aires,  1906). 

Finances  —  Economic  Condition  —  Population. 

Martinez,  Alberto  B.    Les  Finances  de  la  Republique  Argentine  (1  vol.,  Buenos  Aires, 

1898). 

,  and  Maurice  Lewandowski.     Argentine  au  XXe  Siecle  (1  vol.,  Paris,  1906). 

Recensement  General  de  la  Republica  Argentina,  1895  (1  vol.). 

Recensement  General  de  la  Ville  de  Buenos  Aires.    1904  (1  vol.). 

Tercer  Censo  Nacional.     1914  (4  vols.,  Buenos  Aires,  1916). 

Urten,  Carlos  M.,  and  Ezio  Colombo.    Geografia  Argentina.    Estudio  Historico,  Fisico, 

Politico  Social  y  Economico  de  la  Republica  Argentina  (1  vol.,  Buenos  Aires,  1905). 


APPENDIX   A 

DOCUMENTS    ILLUSTRATIVE    OF   THE    CONSTITUTIONAL    DEVELOPMENT  OF  THE 

ARGENTINE  REPUBLIC. 

Constitutional  Instruments  Prior  to  1853. 

Provisional  Regulation  of  October  22,  1811  (Reglamento  Provisorio  del  22d  de  Octubre 
1811). 

Provisional  Statute  of  November  22,  1811  (Estatuto  Provisional  del  22d  de  Noviembre, 
1811;  Registro  Nacional,  vol.  1,  pp.  122,  124,  127,  128). 

Regulations  for  the  Organization  and  Administration  of  Justice  of  January  23,  1812  (Regla- 
mento de  Institucion  y  Administracion  de  Justicia  del  23  de  Enero,  1812;  Registro 
Nacional  1812,  vol.  1,  pp.  134,  174,  177). 

Regulations  for  the  Administration  of  Justice  of  September  6,  1813,  and  Statute  of  Febru- 
ary 27,  1814  (Reglamento  de  Administracion  de  Justicia  de  6  de  Septiembre  de  1813 
y  Estatuto  de  27  de  Febrero,  1814;  Trabajos  Legislatives  de  las  Primeras  Asam- 
bleas  Argent inas,  vol.  1). 

Statutes  of  February  2  and  February  4,  1813,  abolishing  slavery;  of  March  12,  1813, 
establishing  civil  equality  of  the  Indians;  of  May  21,  1813,  abolishing  torture  in 
criminal  procedure.     (Trabajos  Legislatives  de  las  Primeras  Asambleas  Argentinas, 

vol.  1.) 

Declaration  of  Independence  of  July  9,  1816  (Declaracion  de  Independencia  de  9  de  Julio, 
1816;  Trabajos  Legislativos  de  las  Primeras  Asambleas  Argentinas,  vol.  1). 

Provisional  Regulations  for  the  Management  and  Administration  of  the  Affairs  of  State, 
December  3,  1817  (Reglamento  Provisorio  para  la  direccion  y  administracion  del 
Estado  de  3  de  Deciembre,  1817;  Trabajos  Legislativos  de  las  Primeras  Asambleas 
Argentinas,  vol.  2;  Registro  Nacional  1817,  vol.  1,  pp.  441-454). 

Constitution  of  1819  (Registro  Nacional  1819,  vol.  1,  pp.  502-50.8). 

Law  of  November  13,  1824,  establishing  a  Provisional  Constitutional  System  (Registro 
Nacional,  vol.  2,  p.  1770). 

Fundamental  Law  of  January  23,  1825  (Ley  Fundamental  de  23  de  Enero,  1825;  Registro 
Nacional,  vol.  2,  pp.  1780,  1781,  1783,  1816,  1843,  1861). 

Constitution  of  December  24,  1826  (Registro  Nacional,  vol.  2,  pp.  1926,  1937,  1940,  1947, 
2083,  2098,  2103). 

Inter-Provincial  Agreements  and  Treaties. 

The  Agreement  of  Pilar  of  February  23,  1820  (Convenio  del  Pilar  de  23  de  Febrero,  1820; 

Lopez,  Historia  de  la  Republica  Argentina,  vol.  8,  ch.  2,  p.  143). 
Quadrilateral  Treaty  of  January  25,  1822,  between  Buenos  Aires,  Corrientes,  Entre  Rios, 

and  Santa  Fe  (Tratado  Cuadrilatero  del  25  de  Enero,  1822;  Registro  Nacional  1822, 

vol.  2,  p.  14). 
Treaty  of  August  7,  1829,  between  Cordoba  and  Santa  Fe;   Treaty  of  October  19,  1829, 

between  Buenos  Aires  and  Santa  Fe;  Treaty  of  October  27,  1829,  between  Buenos 

Aires  and  Cordoba;    Treaty  of  April  16,  1830,  between  San  Juan  and  Cordoba; 

Treaty  of  July  5,  1830,  between  Cordoba,  San  Luis,  Mendoza,  and  Rioja;   Treaty 

of  August  31,  1830,  between  the  above  four  provinces  and  San  Juan,  Catamarca, 

Santiago,  Salta,  and  Tucuman  (Registro  Nacional,  vol.  2,  pp.  242,  252,  256,  267, 

270,  and  272). 
Treaty  of  January  4,  1831,  between  Buenos  Aires,  Santa  Fe,  and  Entre  Rios  (Registro 

Nacional,  vol.  2,  p.  279;  also  volume  on  Convencion  Nacional  de  1898,  Appendix, 

p.  587). 

135 


136  The  Federal  System  of  the  Argentine  Republic 

Agreement  of  San  Nicolas,  of  May  31,  1852  (Acuerdo  de  San  Nicolas  de  31  de  Mayo,  1852; 
Registro  Nacional,  vol.  3,  pp.  13-16;  also  volume  on  Convencion  Nacional  de 
1898,  Appendix,  p.  591). 

Constitution  and  Amendments  in  Force. 

Constitution  of  May  1,  1853  (volume  on  Convencion  Nacional  de  1898,  pp.  354-367). 

Law  Establishing  the  capital  in  Buenos  Aires  (volume  on  Convencion  Nacional  de  1898, 
pp.  378-379). 

Law  of  Finance  and  Credit  of  December  17,  1853  (Registro  Nacional). 

Amendments  to  the  National  Constitution  Proposed  by  the  Constitutional  Convention 
ad  hoc  of  the  Province  of  Buenos  Aires,  January  5  to  May  12,  1860  (Diario  de  Se- 
siones  de  la  Convencion  del  Estado  de  Buenos  Aires  encargada  del  examen  de  la 
Constitucion  Federal  y  Anexos  1860). 

Amendments  Ratified  by  the  National  Constitutional  Convention  Assembled  in  Santa  Fe 
September  14,  1860.  Amendments  adopted  September  23,  1860  (volume  on  Con- 
vencion Nacional  de  1898,  pp.  626-628). 

Amendments  Ratified  by  the  National  Constitutional  Convention  Assembled  in  Santa 
Fe  September  10,  1866.  Amendments  adopted  September  12,  1866  (volume  on 
Convencion  Nacional  de  1898,  pp.  789-790). 

Amendments  Ratified  by  the  National  Constitutional  Convention  Assembled  in  Buenos 
Aires  February  24,  1898.  Amendments  adopted  March  15,  1898  (volume  on  Con- 
vencion Nacional  de  1898,  p.  154). 


APPENDIX   B. 

CONSTITUTION  OF  THE  ARGENTINE  REPUBLIC. 
(September  25,  I860.) 

PREAMBLE. 

We,  the  representatives  of  the  people  of  the  Argentine  nation,  assembled 
in  constitutional  convention  by  the  will  and  election  of  the  provinces  of 
which  it  is  composed,  in  pursuance  of  previous  agreements,  for  the  purpose 
of  framing  a  constitution  for  the  national  union,  to  establish  justice,  insure 
domestic  peace,  provide  for  the  common  defense,  promote  the  general  wel- 
fare, and  secure  the  benefits  of  liberty  to  ourselves,  our  posterity,  and  to 
all  men  in  the  world  who  may  desire  to  inhabit  the  Argentine  soil,  invoking  the 
protection  of  God,  the  source  and  origin  of  all  reason  and  justice,  do  hereby 
ordain,  decree,  and  establish  this  constitution  for  the  Argentine  nation. 

PART  FIRST.    SOLE  CHAPTER. 
DECLARATIONS,  RIGHTS,   AND  GUARANTIES. 

Article  1.  The  Argentine  nation  adopts  for  its  government  the  federal 
republican  representative  form,  as  established  by  this  constitution. 

Article  2.  The  federal  government  supports  the  Roman  Catholic  Apos- 
tolic religion. 

Article  3.  The  authorities  exercising  the  functions  of  the  federal  govern- 
ment shall  reside  in  the  city  which  shall  be  declared  by  special  act  of  congress 
to  be  the  capital  of  the  republic,  a  previous  cession  of  the  territory  which 
shall  become  federal  being  made  by  one  or  more  of  the  provincial  legislatures.1 

Article  4.  The  federal  government  shall  defray  the  expenses  of  the 
nation  with  funds  of  the  national  treasury,  consisting  of:  receipts  from 
import  and  export  duties;  duties  to  be  let-ied  until  1866  on  the  exports  of  domestic 
merchandise  as  pronded  in  paragraph  Xo.  1  of  article  67  of  the  present  con- 
stitution;2 proceeds  of  the  sale  or  lease  of  national  lands;  revenue  of  the 
postal  service ;  taxes  levied  by  the  general  congress  equitably  and  in  propor- 
tion to  the  population;  and  moneys  obtained  through  loans  and  financial 
operations  decreed  by  said  congress  for  national  urgencies,  or  for  works  of 
national  utility. 

Article  5.  Each  province  shall  adopt  its  own  constitution,  which  shall 
provide  for  the  administration  of  justice  in  its  own  territory,  its  municipal 
system,  and  primary  instruction,  such  constitution  to  be  framed  upon  the 
republican  representative  plan,  in  harmony  with  the  principles,  declarations, 
and  guaranties  of  the  national  constitution.  Upon  these  conditions,  the 
federal  government  shall  guarantee  to  each  province  the  enjoyment  and 
exercise  of  its  institutions. 

1  A  law  promulgated  September  21,  1880,  established  the  national  capital  in  the  city  of  Buenos 

Aires,  ceded  by  the  legislature  of  the  state  of  the  same  name. 
1  The  words  printed  in  italics  were  ordered  to  be  stricken  out  by  the  national  convention  held 

at  Santa  Fe  on  September  12,  1866. 

137 


138  The  Federal  System  of  the  Argentine  Republic 

Article  6.  The  federal  government  shall  have  the  right  to  intervene 
in  the  territory  of  the  provinces  in  order  to  guarantee  the  republican  form  of 
government  or  to  repel  foreign  invasions;  and  when  requested  by  the  con- 
stituted authorities,  to  maintain  them  in  power,  or  to  re-establish  them  if 
they  shall  have  been  deposed  by  sedition  or  by  invasion  from  another  province. 

Article  7.  Full  credit  shall  be  given  in  each  province  to  the  public 
acts  and  judicial  proceedings  of  all  other  provinces;  and  congress  shall  have 
the  power  to  provide  b}-  general  laws  how  such  acts  and  proceedings  shall 
be  proved,  and  what  legal  effect  they  shall  have. 

Article  8.  The  citizens  of  each  province  shall  enjoy  in  all  the  others 
the  rights,  privileges,  and  immunities  belonging  to  the  citizens  of  such  other 
provinces.  The  extradition  of  criminals  is  reciprocally  obligatory  on  all  the 
provinces. 

Article  9.  All  custom-houses  in  the  territory  of  the  nation  shall  be  na- 
tional, and  governed  by  the  tariff  laws  enacted  by  congress. 

Article  10.  The  circulation  in  the  territory  of  the  republic  of  articles 
of  domestic  production  or  manufacture,  and  of  all  classes  of  goods  and  mer- 
chandise cleared  at  the  custom-houses,  shall  be  free  from  taxation. 

Article  11.  Articles  of  national  or  foreign  production  or  manufacture, 
and  cattle  of  all  kinds,  when  passing  from  the  territory  of  one  province  into 
that  of  another,  shall  be  exempt  from  transit  duties.  The  same  freedom 
shall  also  be  enjoyed  by  the  carriages,  vessels,  or  animals  used  for  their 
transportation,  and  no  other  duty,  whatever  its  name  may  be,  shall  hereafter 
be  imposed  upon  such  articles  and  vehicles  during  their  transit  through  the 
territory. 

Article  12.  Vessels  bound  from  one  province  to  another  shall  not  be 
compelled  to  enter,  cast  anchor,  or  pay  duties  on  account  of  transit,  and 
in  no  case  shall  any  preference  be  given  to  one  port  over  another  by  means 
of  commercial  laws  or  regulations. 

Article  13.  New  provinces  may  be  admitted  into  the  nation,  but  no 
province  shall  be  erected  within  the  territory  of  another,  nor  shall  two 
or  more  provinces  be  consolidated  into  one,  without  the  consent  of  the 
legislatures  of  the  interested  provinces  and  of  congress. 

Article  14.  All  the  inhabitants  of  the  nation  shall  enjoy,  subject  to 
the  laws  regulating  their  exercise,  the  following  rights,  to  wit :  to  work  and 
engage  in  any  lawful  industry;  to  navigate  and  engage  in  commerce;  to 
petition  the  authorities;  to  enter,  remain  in,  travel  through,  or  leave  the 
Argentine  territory;  to  publish  their  ideas  through  the  press  without  previous 
censorship;  to  use  and  dispose  of  their  property;  to  associate  together  for 
useful  purposes;  freely  to  profess  their  religion,  and  to  teach  and  to  study. 

Article  15.  There  shall  be  no  slaves  in  the  Argentine  nation.  Those 
few  now  existing  therein  shall  become  free  as  soon  as  this  constitution  be- 
comes law.  The  indemnifications  which  may  have  to  be  paid  in  consequence 
of  this  declaration  shall  be  regulated  by  special  law.  Contracts  involving 
the  purchase  or  sale  of  persons  shall  be  criminal  acts,  for  which  the  con- 
tracting parties,  as  well  as  the  notary  or  official  before  whom  they  are 
executed,  shall  be  responsible.  Slaves  introduced  in  any  way  whatever  into 
the  count ry  shall  become  free  by  the  mere  fact  of  entrance  into  the  territory 
of  the  republic. 

Article  16.  The  Argentine  nation  does  not  recognize  prerogatives  of 
blood  or  birth;  personal  privileges,  and  titles  of  nobility  shall  not  exist 
therein.  All  of  its  inhabitants  are  equal  before  the  law,  and  their  eligibility 
to  office  shall  depend  exclusively  upon  their  fitness.  Equality  shall  be  the 
basis  of  taxation  and  of  all  public  burdens. 


Appendix  B  139 


Article  17.  Private  property  is  inviolable,  and  no  inhabitant  of  the 
nation  shall  be  deprived  of  it  except  by  judicial  decision  founded  on  law. 
Condemnation  of  property  for  a  public  purpose  shall  be  authorized  by  law, 
and  indemnification  previously  made.  Congress  alone  shall  have  power  to 
impose  the  taxes  referred  to  in  article  4.  No  personal  service  shall  be  re- 
quired of  anyone,  except  when  ordered  by  law  or  by  judicial  decision  founded 
on  law.  Authors  and  inventors  shall  be  the  exclusive  owners  of  their  works, 
invent  inns,  or  discoveries,  for  the  length  of  time  established  by  law.  Con- 
fiscation of  property  is  forever  stricken  out  of  the  Argentine  penal  code. 
No  armed  body  shall  make  requisitions  or  demand  assistance  of  any  kind. 

Article  18.  No  inhabitant  of  the  nation  shall  be  punished  except  after 
trial  and  conviction  under  laws  anterior  to  the  commission  of  the  offense; 
nor  shall  he  be  tried  by  special  commissions,  or  removed  from  the  jurisdiction 
of  the  courts  which,  under  the  laws  in  force  at  the  time  when  the  offense  was 
committed,  should  take  cognizance  of  his  case.  No  one  shall  be  compelled 
to  testify  against  himself;  nor  shall  anyone  be  arrested  except  by  virtue  of 
a  written  order  of  the  proper  authority.  The  defense  of  person  and  rights 
before  the  courts  shall  be  inviolable.  Domicile  as  well  as  epistolary  corre- 
spondence and  private  papers  shall  be  inviolable;  but  a  law  shall  determine 
in  what  cases  and  under  what  circumstances  the  former  may  be  entered  and 
the  latter  seized.  The  penalty  of  death  for  political  offenses,  torture  of  all 
kinds,  and  whipping  are  abolished.  The  national  jails  shall  be  healthful  and 
clean,  intended  for  the  safe  keeping  and  not  for  the  punishment  of  the 
offenders  detained  therein,  and  any  measure  which,  under  color  of  precaution, 
tends  to  inflict  upon  the  prisoners  more  hardships  than  those  required  for 
their  security  shall  cause  the  judge  authorizing  it  to  be  held  responsible. 

Article  19.  Private  actions  which  in  no  way  offend  public  order  or 
morals,  and  are  not  injurious  to  a  third  party,  shall  be  reserved  to  God  alone, 
and  are  not  subject  to  the  authority  of  the  state.  No  inhabitant  of  the 
nation  shall  be  bound  to  do  what  is  not  ordered  by  law,  nor  shall  he  be 
forbidden  to  do  what  it  does  not  prohibit. 

Article  20.  Aliens  shall  enjoy  in  the  territory  of  the  nation  all  the 
civil  rights  of  citizens.  They  may  exercise  their  trade,  business,  or  profession; 
own,  buy,  and  transfer  real  estate;  navigate  the  rivers  and  coasts;  practice 
freely  their  religion ;  make  wills,  and  contract  marriage  in  conformity  with 
the  law.  They  shall  not  be  compelled  to  become  citizens  or  to  pay  forced 
extraordinary  taxes.  They  may  obtain  naturalization  by  residing  two  con- 
secutive years  in  the  nation,  but  the  authorities  may  shorten  this  period  in 
favor  of  the  applicant  who  affirms  and  proves  that  he  has  rendered  services 
to  the  republic. 

Article  21.  Every  Argentine  citizen  shall  be  obliged  to  bear  arms  in 
defense  of  his  country  and  of  this  constitution,  in  accordance  with  the  laws 
enacted  by  Congress  for  that  purpose,  and  in  accordance  with  the  decrees  of 
the  national  executive.  Naturalized  citizens  shall  be  free  to  render  or  to 
refuse  military  service  during  the  ten  years  following  the  day  on  which  they 
obtain  their  citizenship  papers. 

Article  22.  The  people  shall  not  deliberate,  or  exercise  the  powers  of 
government,  except  through  their  representatives  and  authorities  created 
by  this  constitution.  Any  armed  force  or  gathering  of  persons  assuming 
to  be  vested  with  the  representation  of  the  rights  of  the  people  and  petition- 
ing in  their  behalf  shall  be  guilty  of  sedition. 

Article  23.  In  case  of  domestic  disturbance,  or  foreign  attack,  endanger- 
ing the  observance  of  this  constitution  and  the  safety  of  the  authorities 
created  by  it,  a  state  of  siege  shall  be  proclaimed  in  the  province  or  territory 


140  The  Federal  System  of  the  Argentine  Republic 

wherein  public  order  is  disturbed  and  the  constitutional  guaranties  shall  be 
suspended  within  its  limits.  But  during  this  suspension  the  president 
of  the  republic  shall  have  no  power  by  himself  to  condemn  anyone  or  inflict 
punishments.  His  power  shall  be  limited  in  such  cases,  so  far  as  persons  are 
concerned,  to  arrest  or  transfer  them  from  one  place  in  the  country  to  another 
should  they  not  prefer  to  leave  the  Argentine  territory. 

Article  24.  Congress  shall  promote  the  reform  of  the  laws  which  are  now 
in  force  in  all  branches  and  the  establishment  of  trial  by  jury. 

Article  25.  The  federal  government  shall  encourage  European  im- 
migration, and  shall  not  have  power  to  restrict,  limit,  or  obstruct,  by  taxation 
of  any  kind,  the  entrance  into  the  Argentine  territory  of  foreigners  coming 
to  it  for  the  purpose  of  engaging  in  the  cultivation  of  the  soil,  the  improve- 
ment of  industrial  business,  or  the  introduction  and  teaching  of  arts  and 
sciences. 

Article  26.  Navigation  on  the  rivers  in  the  interior  of  the  nation  is  free 
to  all  flags  and  subject  to  no  other  regulations  than  those  proclaimed  by  the 
national  authority. 

Article  27.  The  federal  government  shall  be  bound  to  strengthen  the 
commercial  and  peaceful  relations  of  the  Argentine  nation  with  foreign 
countries  by  means  of  treaties  consistent  with  the  principles  of  public  law 
established  by  this  constitution. 

Article  28.  No  principle,  guarantee,  or  right  recognized  in  the  foregoing 
articles  shall  be  altered  by  any  law  which  may  be  enacted  to  regulate  its 
exercise. 

Article  29.  Congress  shall  not  have  power  to  grant  to  the  national  ex- 
ecutive or  the  provincial  legislatures  the  power  to  grant  to  the  provincial 
governors  extraordinary  powers,  or  the  whole  of  the  public  authority,  or  to 
assent  to  submissions  or  supremacy  through  which  the  lives,  the  honor,  or 
the  property  of  Argentines  may  be  placed  at  the  mercy  of  governments,  or  of 
any  person  whatsoever.  Acts  of  this  character  shall  be  utterly  void,  and 
shall  render  their  authors,  or  those  who  consent  to  them  or  authorize  them 
with  their  signatures,  liable  to  be  called  to  account  and  to  be  punished  as 
infamous  traitors  to  their  country. 

Article  30.  The  constitution  may  be  amended  either  wholly  or  in  part. 
The  necessity  for  such  amendment  shall  be  declared  by  congress,  by  a  vote 
of  at  least  two-thirds  of  its  members;  but  the  amendment  itself  shall  not 
be  made  except  by  a  convention  called  for  that  purpose. 

Article  31.  This  constitution,  the  national  laws  which  may  be  enacted 
by  congress  in  pursuance  thereof,  and  the  treaties  with  foreign  powers  shall 
be  the  supreme  law  of  the  nation;  and  the  authorities  of  each  province  shall 
be  bound  to  abide  by  them,  any  provision  in  their  own  provincial  constitu- 
tion or  laws  to  the  contrary  notwithstanding.  This  rule  shall  not  be 
applicable  to  the  province  of  Buenos  Aires,  in  so  far  as  the  treaties  ratified 
after  the  compact  of  November  11,  1859,  are  concerned. 

Article  32.  The  federal  congress  shall  not  pass  any  law  restricting  the 
liberty  of  the  press,  or  subjecting  it  to  federal  jurisdiction. 

Article  33.  The  declarations,  rights,  and  guaranties  enumerated  in  the 
constitution  shall  not  be  construed  as  involving  the  denial  of  any  other 
rights  and  guaranties  not  enumerated,  but  naturally  derived  from  the  princi- 
ples of  the  sovereignty  of  the  people  and  of  the  republican  form  of 
government. 

Article  34  The  judges  of  the  federal  courts  shall  not  at  the  same  time 
be  judges  in  the  provincial  courts.  Neither  shall  a  position  in  the  federal 
service,  whether  civil  or  military,  confer  upon  the  official  who  holds  it  the 


Appendix   B  141 


rights  of  residence  in  the  province  wherein  it  is  held,  and  which  may  not  be 
his  habitual  abode,  this  provision  applying  to  their  being  chosen  to  positions 
in  the  province  in  which  they  may  accidentally  happen  to  be. 

Article  35.  The  names  of  "The  United  Provinces  of  the  Rio  de  La  Plata" 
"The  Argentine  Republic,"  "The  Argentine  Confederation,"  adopted  in 
succession  since  1810,  may  in  future  be  used  indiscriminately  as  official 
designation  of  the  government  and  the  territory  of  the  provinces;  but  the 
name  of  "The  Argentine  Nation"  shall  be  used  in  the  enactment  and  ap- 
proval of  the  laws. 


PART  SECOND.    AUTHORITIES  OF  THE  NATION. 

TITLE  FIRST. —  THE  FEDERAL  GOVERNMENT. 

Section  First.  —  The  Legislative  Power. 

Article  36.  The  legislative  power  of  the  nation  shall  be  vested  in  a  con- 
gress composed  of  two  houses,  one  called  the  house  of  deputies  of  the  nation 
and  the  other  the  house  of  senators  of  the  provinces  and  of  the  capital. 

Chapter  I.  —  The  House  of  Deputies. 

Article  37.  The  house  of  deputies  shall  consist  of  representatives  elected 
directly  and  by  simple  plurality  of  votes,  by  the  people  of  the  provinces  and 
of  the  capital,  which  shall  be  considered  for  this  purpose  as  electoral  districts 
of  a  unitary  state.  The  number  of  representatives  shall  be  one  for  every 
thirty- three  thousand  inhabitants  of  fractions  thereof  of  not  less  than  sixteen 
thousand  five  hundred.  After  the  taking  of  each  census  congress,  upon  the 
basis  of  such  census,  shall  fix  the  ratio  of  representation,  which  may  increase 
but  not  diminish  the  number  of  inhabitants  required  for  each  deputy.1 

Article  38.  The  deputies  for  the  first  congress  shall  be  elected  in  the  fol- 
lowing proportion:  For  the  province  of  Buenos  Aires,  twelve;  for  the  province 
of  Cordoba,  six;  for  the  province  of  Catamarca,  three;  for  the  province  of 
Corrientes,  four;  for  the  province  of  Entre  Rfos,  two;  for  the  province  of  Jujuy, 
two;  for  the  province  of  Mendoza,  three;  for  the  province  of  La  Rioja,  two; 
for  the  province  of  Salta,  three;  for  the  province  of  Santiago,  four;  for  the  prov- 
ince of  San  Juan,  two;  for  the  province  of  Sante  Fe\  two;  for  the  province  of 
San  Luis,  two;  for  the  province  of  Tucum&n,  three. 

Article  39.  A  general  census  shall  be  taken  before  the  meeting  of  the 
second  congress,  and  the  apportionment  of  deputies  shall  then  be  made  in 
accordance  therewith.  The  census,  however,  shall  not  be  taken  more  than 
once  in  every  ten  years. 

Article  40.  No  person  shall  be  elected  a  deputy  who  has  not  attained  the 
age  of  twenty-five,  who  has  not  been  a  citizen  for  four  years,  and  who  is  not 
a  native  of  the  province  electing  him  or  a  resident  thereof  for  the  two  pre- 
ceding years. 

Article  41.  The  provincial  legislatures  shall  regulate  the  manner  of 
holding  the  first  direct  election  of  the  deputies  of  the  nation ;  Congress  shall 
enact  a  general  law  for  succeeding  elections. 

Article  42.  The  deputies  shall  serve  for  four  years,  and  are  eligible  for 
re-election.  The  house,  however,  shall  be  renewed  by  halves  every  two  years, 
and  for  this  purpose  the  deputies  elected  to  the  first  congress  shall  draw 

1  See  article  as  amended  March  15,  1898,  p.  153. 


14/2  The  Federal  System  of  the  Argentine  Republic 

lots  as  soon  as  they  meet,  in  order  to  determine  those  whose  term  shall  ex- 
pire at  the  end  of  the  first  two  years. 

Article  43.  In  case  of  vaeancj',  the  governor  of  the  province  or  of  the 
capital  shall  proceed  to  a  legal  election  of  a  new  member. 

Article  44.  The  initiative  of  laws  relating  to  taxes  and  to  the  recruiting 
of  troops  shall  belong  exclusively  to  the  house  of  deputies. 

Article  45.  The  house  of  deputies  alone  shall  have  the  right  to  impeach 
before  the  senate  the  president,  the  vice-president,  the  ministers  of  the 
executive  power,  the  justices  of  the  supreme  court,  and  the  judges  of  other 
inferior  tribunals  of  the  nation  for  malfeasance  or  crime  in  the  exercise  of 
their  functions,  or  for  ordinary  offenses.  Impeachment  of  such  person  shall 
be  made  after  investigation,  and  a  resolution  that  a  trial  is  in  order  passed 
by  a  vote  of  two-thirds  of  the  deputies  present. 

Chapter  II.  —  The  Senate. 

Article  46.  The  senate  shall  consist  of  two  senators  for  each  province 
elected  by  a  plurality  of  votes  of  the  respective  provincial  legislatures. 
There  shall  also  be  two  senators  for  the  capital,  who  shall  be  elected  in  the 
manner  prescribed  for  the  president  of  the  nation.  Each  senator  shall  have 
one  vote. 

Article  47.  The  following  qualifications  shall  be  necessary  for  election 
as  senator:  the  attainment  of  the  age  of  thirty;  citizenship  in  the  nation  for 
six  years;  the  enjoyment  of  an  annual  income  of  two  thousand  pesos  in  coin, 
or  an  equivalent  amount  of  capital;  and  nativity  in  the  province  which  elects 
him  or  residence  therein  for  the  two  years  immediately  preceding. 

Article  48.  Senators  shall  serve  for  nine  years  and  are  eligible  for  re- 
election indefinitely.  But  the  senate  shall  be  renewed  by  thirds  every  three 
years.  For  this  purpose  the  senators  themselves,  as  soon  as  they  all  convene, 
shall  decide  by  lot  those  who  shall  retire  at  the  expiration  of  the  first  and 
second  periods  of  three  years. 

Article  49.  The  vice-president  of  the  nation  shall  be  president  of  the 
senate ;  but  he  shall  have  no  vote  except  in  the  case  of  a  tie. 

Article  50.  The  senate  shall  elect  a  president  pro  tempore  to  preside  in 
case  of  the  absence  of  the  vice-president,  or  when  the  latter  acts  as  president 
of  the  nation. 

Article  51.  The  senate  shall  have  the  power  to  try  in  public  the  persons 
impeached  by  the  house  of  deputies,  and  senators,  when  sitting  for  that  pur- 
pose, shall  act  under  oath.  When  the  impeached  official  is  the  president 
of  the  nation,  the  president  of  the  supreme  court  shall  preside  over  the  senate. 
No  person  shall  be  convicted  without  the  concurrence  of  two-thirds  of  the 
members  present. 

Article  52.  The  sentence  of  the  Senate  shall  not  extend  further  than 
removal  of  the  one  impeached  from  office  and  disqualification  to  hold  any 
office  of  honor,  trust,  or  profit  under  the  nation;  but  the  convicted  person 
shall  nevertheless  be  subject  to  indictment,  trial,  and  punishment,  according 
to  law,  by  the  ordinary  courts. 

Article  53.  The  senate  may  also  authorize  the  president  of  the  nation 
to  declare  a  state  of  siege  in  one  or  more  places  in  the  republic,  in  case  of 
foreign  invasion. 

Article  54.  When  the  seat  of  a  senator  becomes  vacant  on  account  of 
death,  resignation,  or  for  any  other  cause,  the  government  of  the  province 
represented  by  such  senator  shall  proceed  immediately  to  the  election  of  a 
new  member. 


Appendix  B  143 


Chapter  III.  —  Provisions  Common  to  Both  Houses. 

Article  55.  Both  houses  shall  meet  in  regular  session  on  the  first  day 
of  May  of  each  year  and  shall  continue  in  session  until  the  thirtieth  of 
September.  They  may  also  be  convened  in  extraordinary  session  or  their 
sessions  may  be  extended  by  the  president  of  the  nation. 

Article  56.  Each  house  shall  be  the  judge  of  the  elections,  rights,  and 
titles  of  its  own  members,  in  so  far  as  the  questions  of  their  validity  is  con- 
cerned. Neither  house  shall  transact  business  without  the  presence  of  a 
majority  of  all  its  members;  but  a  smaller  number  shall  have  the  power  to 
compel  the  attendance  of  absent  members  by  such  means  and  under  such 
penalties  as  each  house  may  establish. 

Article  57.  Both  houses  shall  open  and  close  their  sessions  simultaneously. 
Neither  shall  have  the  power,  during  the  session  of  congress,  to  adjourn,  with- 
out the  consent  of  the  other,  for  more  than  three  days. 

Article  58.  Each  house  may  determine  the  rules  of  its  proceedings,  and 
by  a  two-thirds  vote  may  punish  any  of  its  members  for  disorderly  behavior 
in  the  discharge  of  his  functions,  remove  him  for  physical  or  moral  inability 
subsequent  to  his  admission,  or  even  expel  him  from  the  body.  But  a 
majority  of  one  more  than  half  of  those  present  shall  be  sufficient  to  act  upon 
the  voluntary  resignation  of  a  member. 

Article  59.  Senators  and  deputies,  on  taking  their  seats,  shall  take  an 
oath  to  perform  their  duties  properly  and  to  act  in  all  things  in  accordance 
with  this  constitution. 

Article  60.  No  member  of  congress  shall  be  indicted,  judicially  ques- 
tioned, or  molested  for  opinions  expressed  or  speeches  delivered  by  him 
in  the  discharge  of  his  duties  as  a  legislator. 

Article  61.  Senators  and  deputies  shall  be,  from  the  day  of  their  elec- 
tion to  the  day  of  the  expiration  of  their  term,  exempt  from  arrest,  except 
when  taken  in  the  act  of  committing  a  crime  that  merits  the  death  penalty 
or  any  other  disgraceful  or  corporal  punishment,  in  which  case  the  matter 
shall  Be  reported  to  the  house  to  which  the  member  belongs,  with  the  record 
of  the  preliminary  hearing. 

Article  62.  Should  any  charge  be  made  in  writing,  before  the  ordinary 
tribunals,  against  a  senator  or  deputy,  the  house  to  which  he  belongs  may, 
by  a  two-thirds  vote,  and  upon  examination  in  public  of  the  merits  of  the 
case,  suspend  the  accused  from  the  exercise  of  his  functions  and  surrender  him 
to  the  proper  court  for  trial. 

Article  63.  Each  house  shall  have  power  to  summon  to  its  presence  the 
ministers  of  the  executive  power  in  order  that  they  may  give  orally  the  ex- 
planations and  information  which  may  be  deemed  necessary. 

Article  64.  No  member  of  Congress  shall  receive  from  the  executive 
any  appointment  or  commission  without  first  obtaining  the  consent  of  the 
house  to  which  he  belongs;  this  article  shall  not  be  applicable  to  cases  in 
which  the  appointment  is  merely  a  promotion. 

Article  65.  No  member  of  the  religious  orders  shall  be  elected  to  con- 
gress. Nor  shall  any  provincial  governor  represent  his  province  during  his 
term  of  office. 

Article  66.  The  remuneration  of  the  services  of  senators  and  deputies 
shall  be  fixed  by  law  and  paid  out  of  the  funds  of  the  national  treasury. 


144  The  Federal  System  of  the  Argentine  Republic 

Chapter  IV.  —  Powers  of  Congress. 

Article  67.  Congress  shall  have  power: 

1.  To  legislate  in  regard  to  custom-houses,  and  to  establish  import  duties, 
which,  as  well  as  the  rates  of  appraisement  on  which  they  are  based,  shall  be 
uniform  throughout  the  nation;  it  being  thoroughly  understood,  however, 
that  these  duties  and  all  other  taxes  of  national  character  are  payable  in  the 
currency  of  the  respective  provinces  in  their  exact  equivalent  value.  And  to 
establish  likewise  export  duties  up  to  1S66,  at  u-hich  time  they  shall  cease  to  be 
either  national  or  provincial  taxes.1 

2.  To  levy  direct  taxes  for  a  period  of  time  and  in  a  manner  propor- 
tionately equal  throughout  the  territory  of  the  nation,  whenever  the  defense 
of  the  country,  the  common  safety,  or  the  public  good  may  require  it. 

3.  To  borrow  money  on  the  credit  of  the  nation. 

4.  To  provide  for  the  use  and  disposition  of  the  national  lands. 

5.  To  establish  and  organize  at  the  capital  a  national  bank,  with  branches 
in  the  provinces,  with  power  to  issue  bank  notes. 

6.  To  make  arrangements  for  the  payment  of  the  national  debt,  both 
foreign  and  domestic. 

7.  To  appropriate  annually  the  money  necessary  to  meet  the  expenditures 
of  the  national  government,  and  to  approve  or  disapprove  the  accounts  of  its 
disbursement. 

8.  To  grant  subsidies,  to  be  paid  out  of  the  national  treasury,  to  those 
provinces  whose  revenues,  according  to  their  budgets,  are  insufficient  to 
meet  their  ordinary  expenses. 

"9.  To  regulate  the  free  navigation  of  the  rivers  in  the  interior,  to  declare 
as  ports  of  entry  those  which  may  be  deemed  fit  for  that  purpose,  and  to 
establish  or  abolish  custom-houses.  But  the  custom-houses  for  foreign  com- 
merce, existing  in  each  province  at  the  time  of  its  coming  into  the  national 
union,  shall  not  be  abolished. 

10.  To  coin  money,  fix  the  value  thereof  and  that  of  foreign  coins,  and 
adopt  a  uniform  system  of  weights  and  measures  for  the  whole  nation. 

11.  To  enact  civil,  commercial,  penal,  and  mining  codes  without  en- 
croaching upon  the  local  jurisdictions,  the  provisions  of  said  codes  to  be  en- 
forced either  by  the  federal  or  provincial  courts,  according  as  the  matters  or 
persons  may  fall  under  their  respective  jurisdiction;  and  especially  to  enact 
general  laws  on  naturalization  and  citizenship  for  the  whole  nation  based  upon 
the  principle  of  citizenship  by  nativity,  as  well  as  laws  on  bankruptcy, 
counterfeiting  of  money  and  forging  of  public  documents  of  the  state,  and  on 
the  establishment  of  trial  by  jury. 

12.  To  regulate  commerce  by  land  and  sea  with  foreign  countries,  and 
among  the  provinces. 

13.  To  establish  and  regulate  the  post-offices  and  post-roads  of  the  nation. 

14.  To  settle  finally  the  national  boundaries,  to  fix  those  of  the  provinces, 
to  create  new  provinces,  and  to  provide  by  special  laws  for  the  organization, 
administration,  and  government  of  the  national  territories  which  may  be  left 
outside  the  limits  assigned  to  the  provinces. 

L5.  To  provide  for  the  security  of  the  frontiers  and  for  the  preservation 
of  peaceful  intercourse  with  the  Indians,  and  to  promote  their  conversion  to 
Catholicism. 

10.  To  provide  for  all  that  conduces  to  the  prosperity  of  the  country,  to 
the  advancement  and  welfare  of  all  the  provinces,  and  to  the  advancement  of 

1   Words  in  italicM  stricken  out  September  12,  1866.     See  amendment  to  art.  67,  clause  1,  p.  156. 


Appendix  IS  145 


the  enlightenment  of  the  people,  by  prescribing  plans  for  general  and 
university  instruction  and  l>y  promoting  industrial  enterprise,  immigration, 
the  construction  of  railways  and  navigable  canals,  the  colonization  of  the 
public  lands,  the  introduction  and  establishment  of  new  industries,  the  im- 
portation of  foreign  capital,  and  the  exploration  of  the  interior  rivers,  by  pro- 
tective laws  for  these  purposes,  by  concessions  of  privileges  for  a  limited 
time,  and  by  rewards  which  shall  act  as  an  encouragement. 

17.  To  establish  courts  inferior  to  the  supreme  court  of  justice;  to  create 
and  abolish  offices  and  to  fix  the  duties  of  the  same;  grant  pensions,  decree 
honors,  and  to  grant  general  amnesties. 

18.  To  accept  or  refuse  to  accept  the  reasons  assigned  for  the  resignation 
of  the  president  or  vice-president  of  the  republic;  to  declare  that  the  time  has 
arrived  to  proceed  to  a  new  election,  to  count  the  returns  thereof,  and  to 
ascertain  the  result. 

19.  To  approve  or  reject  treaties  concluded  with  other  nations,  and  the 
concordats  entered  into  with  the  Apostolic  See,  and  to  make  rules  for  the 
exercise  of  ecclesiastical  patronage  throughout  the  nation. 

20.  To  admit  into  the  territory  of  the  nation  religious  orders  in  addition 
to  those  now  existing. 

21.  To  authorize  the  executive  power  to  declare  war  or  to  make  peace. 

22.  To  grant  letters  of  marque  and  of  reprisal  and  to  make  rules  con- 
cerning prizes. 

23.  To  fix  the  strength  of  the  land  and  naval  forces  in  times  of  peace 
and  of  war,  and  to  make  rules  and  ordinances  for  the  government  of  such  forces. 

24.  To  authorize  the  calling  out  of  the  militia  of  the  provinces,  whenever 
the  execution  of  the  laws  of  the  nation,  the  suppression  of  insurrections,  or  the 
repelling  of  invasions,  may  render  it  necessary.  To  provide  for  the  organiza- 
tion, equipment,  and  discipline  of  such  militia,  and  for  the  administration 
and  government  of  the  part  thereof  which  may  be  employed  in  the  service  of 
the  nation,  leaving  to  the  provinces  the  power  to  appoint  the  proper  chiefs 
and  officers  of  their  respective  militias,  and  to  enforce  in  regard  to  them  the 
discipline  established  by  congress. 

25.  To  permit  the  introduction  of  foreign  troops  into  the  territory  of 
the  nation,  and  the  departure  therefrom  of  the  national  troops. 

26.  To  proclaim  a  state  of  siege  in  one  or  more  places  in  the  nation  in 
case  of  internal  disorder,  and  to  approve  or  suspend  the  state  of  siege  de- 
clared during  the  recess  of  congress  by  the  executive  power. 

27.  To  exercise  exclusive  legislative  power  throughout  the  territory  of  the 
national  capital  and  in  all  other  places  acquired  by  purchase  or  cession  in  any 
province  for  the  construction  of  forts,  arsenals,  magazines,  or  other  useful 
establishments  of  national  utility. 

28.  To  make  all  laws  and  regulations  which  shall  be  necessary  for  carrying 
into  execution  the  foregoing  powers  and  all  other  powers  vested  by  this  con- 
stitution in  the  government  of  the  Argentine  nation. 

Chapter  V.  —  Enactment  and  Approval  of  Laws. 

Article  68.  Laws  may  originate  in  either  house  of  congress  by  means  of 
bills  introduced  by  the  members  thereof  or  by  the  executive;  except,  however, 
those  relating  to  the  subjects  mentioned  in  article  44. 

Article  69.  When  a  bill  has  been  passed  in  the  house  where  it  originated, 
it  shall  be  sent  to  the  other  house  for  discussion.  Having  been  passed  by 
both  houses,  it  shall  be  sent  to  the  executive  of  the  nation  for  examination, 
who,  if  he  approve  it,  shall  promulgate  it  as  law. 


146  The  Federal  System  of  the  Argentine  Republic 

Article  70.  Bills  not  returned  by  the  executive  within  ten  working 
days  shall  be  considered  approved. 

Article  71.  No  bill  wholly  rejected  in  one  house  shall  be  introduced 
again  during  the  sessions  of  the  same  year.  But  if  it  be  merely  added  to  or 
amended  by  the  house  to  which  it  was  sent  for  examination,  it  shall  be 
returned  to  the  house  in  which  it  originated;  and  if  the  additions  or  amend- 
ments be  adopted  there  by  an  absolute  majority,  it  shall  be  sent  to  the 
executive  of  the  nation.  If  the  additions  or  amendments  be  rejected,  the 
bill  shall  be  again  referred  to  the  house  where  they  were  made,  and  if  they 
be  again  approved  there  by  a  majority  of  two-thirds  of  the  members  thereof, 
the  bill  shall  be  again  referred  to  the  other  house,  where  such  additions  or 
amendments  shall  not  be  deemed  rejected  unless  the  rejection  is  made  by  a, 
majority  of  two-thirds  of  the  members  present. 

Article  72.  A  bill  rejected,  either  wholly  or  in  part,  by  the  executive 
shall  be  returned  with  his  objections  to  the  house  in  which  it  originated, 
where  it  shall  be  discussed  a  second  time,  and  if  passed  by  a  two-thirds 
majority  shall  be  again  referred  to  the  other  house  for  examination.  If  the 
bill  pass  both  houses  by  the  aforesaid  majority  it  shall  become  a  law  and  shall 
go  to  the  executive  for  promulgation.  The  votes  in  both  houses  in  this  case 
shall  be  by  yeas  and  nays,  and  the  names  of  the  members  who  took  part  in 
the  vote,  as  well  as  the  grounds  upon  which  they  founded  their  votes,  and 
the  objections  of  the  executive,  shall  be  immediately  published  by  the  press. 
If  the  houses  disagree  in  regard  to  the  objections,  the  bill  shall  not  be  reconsid- 
ered in  any  session  of  the  same  year. 

Article  73.  The  enacting  clause  of  all  laws  shall  be  as  follows:  "The 
senate  and  the  house  of  deputies  of  the  Argentine  Nation,  in  congress 
assembled,  etc.,  decree  or  sanction  as  law:" 

Section  Second. — The  Executive  Power. 
Chapter  I.  —  Its  Nature  and  Duration. 

Article  74.  The  executive  power  of  the  nation  shall  be  vested  in  a 
citizen  with  the  title  of  "President  of  the  Argentine  Nation." 

Article  75.  In  case  of  illness,  absence  from  the  capital,  death,  resigna- 
tion, or  removal  of  the  president,  the  executive  power  shall  be  exercised  by 
the  vice-president  of  the  nation.  In  case  of  removal,  death,  resignation, 
or  incapacity  of  both  the  president  and  vice-president  of  the  nation,  congress 
shall  determine  what  public  officer  shall  act  as  president  until  the  disability 
is  removed  or  a  new  president  is  elected.1 

Article  76.  To  be  elected  president  or  vice-president  of  the  nation  one 

1  Law  of  September  19,  1868: 

The  Senate  and  the  Chamber  of  Deputies,  etc. 

Article  1.  In  case  of  vacancy  of  both  the  presidency  and  vioe-p residency  of  the  nation, 
the  executive  power  shall  be  vested  first  in  the  president  pro  tempore  of  the  senate,  second  in 
the  speaker  of  the  chamber  of  deputies,  and  third,  in  the  chief  justice  of  the  supreme  court. 

Abticle  2.  For  the  purposes  of  this  law  each  chamber  shall  appoint  its  presiding  officer 
thirty  days  before  the  closing  of  the  ordinary  session. 

Article  3.  The  official  called  upon  to  discharge  the  duties  of  the  executive,  ac- 
cording to  article  1  of  this  law,  shall,  if  the  absence  or  disability  of  the  president  and  vice- 
president  be  permanent,  order  a  new  election  of  president  and  vice-president  to  be  held 
within  thirty  days  after  his  installation  in  office. 

Article  4.  The  functionary  who  shall  exercise  the  executive  power  in  the  cases  of 
article  1  of  this  law  shall,  on  entering  upon  the  discharge  of  his  duties,  take  before  congress, 
and  in  its  absence  before  the  supreme  court  of  justice,  the  oath  prescribed  by  article  80  of 
the  constitution. 


Appendix  B  147 


must  have  been  born  in  the  Argentine  territory,  or  if  born  in  a  foreign 
country  be  the  son  of  a  native  citizen;  must  belong  to  the  Roman  Catholic 
Apostolic  church;  and  must  have  all  the  other  qualifications  required  to  be  a 
senator. 

Article  77.  The  president  and  the  vice-president  shall  hold  their  offices 
for  a  term  of  six  years,  but  neither  shall  be  reelected  until  after  an  inter- 
mission of  one  term. 

Article  78.  The  president  of  the  nation  shall  cease  to  exercise  his  powers 
on  the  same  day  on  which  his  term  of  six  years  expires;  and  no  event  of  any 
kind  which  may  have  interrupted  such  term  may  be  alleged  as  a  reason  for 
completing  it  afterward. 

Article  79.  The  president  and  vice-president  shall  receive  for  their 
services  a  compensation,  to  be  paid  from  the  national  treasury,  the  amount  of 
which  shall  not  be  changed  during  their  terms  of  office.  During  said  period 
they  shall  not  exercise  any  other  office  or  receive  any  other  emolument,  either 
national  or  provincial. 

Article  80.  On  entering  upon  the  discharge  of  their  duties,  the  president 
and  the  vice-president  shall  take  an  oath,  which  shall  be  administered  to  them 
by  the  president  of  the  senate  (the  first  time  by  the  president  of  the  Con- 
stitutional Convention),  congress  being  in  session,  in  the  following  terms: 

"I, ,  do  swear  before  God  our  Lord  and  these  Holy  Gospels 

to  discharge  loyally  and  patriotically  the  office  of  president  (or  vice-presi- 
dent) of  the  nation,  and  faithfully  to  observe  and  to  cause  others  to  observe, 
the  constitution  of  the  Argentine  Nation.  Should  I  fail  to  do  so,  may  God 
and  the  nation  require  it  of  me." 

Chapter  II.  —  Manner  and  Time  of  Electing  the  President  and  Vice-president  of  the  Nation. 

Article  81.  The  election  of  the  president  and  vice-president  of  the 
nation  shall  be  made  in  the  following  manner:  The  capital  and  each  one  of 
the  provinces  shall  appoint,  by  direct  vote,  an  electoral  college,  consisting 
of  twice  as  many  members  as  the  number  of  senators  and  deputies  con- 
stituting their  respective  representation  in  congress,  who  shall  have  the 
same  qualifications,  and  shall  be  elected  in  the  same  manner,  as  is  provided 
for  the  election  of  deputies. 

Deputies,  senators,  and  officials  receiving  pay  from  the  federal  govern- 
ment, shall  be  disqualified  from  acting  as  electors. 

Four  months  before  the  expiration  of  the  presidential  term,  the  electors 
chosen  by  the  capital  shall  meet  in  the  capital,  and  those  chosen  by  the 
provinces  in  their  respective  capitals,  and  shall  proceed  to  elect  by  signed 
ballots  the  president  and  vice-president  of  the  nation,  expressing  in  one  ballot 
the  choice  for  president  and  in  another  distinct  ballot  the  choice  for  vice- 
president. 

Two  lists  shall  be  made  of  all  the  persons  named  for  president  and  two 
others  of  those  named  for  vice-president,  with  the  number  of  votes  cast  in 
favor  of  each  of  them.  These  lists  shall  be  signed  by  the  electors  and  sent 
by  them  sealed,  two  (one  of  each  kind)  to  the  president  of  the  provincial 
legislature,  and  in  the  case  of  the  capital  to  the  president  of  the  municipality, 
to  be  filed  and  kept,  with  their  seals  unbroken,  in  their  respective  archives, 
and  the  other  two  to  the  president  of  the  senate  (for  the  first  election  to  the 
president  of  the  constitutional  convention). 

Article  82.  The  president  of  the  senate  (for  the  first  election  the  presi- 
dent of  the  constitutional  convention),  having  all  the  lists  in  his  possession, 
shall  open  them  in  the  presence  of  the  two  houses.     Four  members  of  congress, 


148  The  Federal  System  of  the  Argentine  Republic 

selected  by  lot,  shall,  together  with  the  secretaries,  immediately  proceed  to 
count  and  announce  the  votes  cast  for  each  candidate  for  president  or  for 
vice-president  of  the  nation.  Those  receiving  in  each  case  an  absolute 
majority  of  all  the  votes  shall  be  immediately  proclaimed  president  or  vice- 
president. 

Article  83.  In  case  the  vote  is  divided  and  no  absolute  majority  can 
be  obtained,  congress  shall  elect  one  of  the  two  persons  who  shall  have  ob- 
tained the  greatest  number  of  votes.  If  the  highest  vote  obtained  prove  to 
be  in  favor  of  more  than  two  persons,  congress  shall  make  its  choice  from 
among  all  of  them. 

If  the  highest  vote  obtained  proves  to  be  in  favor  of  only  one  person  and 
two  or  more  persons  are  favored  with  the  next  largest  vote,  the  choice  of 
congress  shall  be  made  from  among  all  those  who  obtained  the  first  and 
second  highest  votes. 

Article  84.  This  choice  shall  be  made  by  an  absolute  majority  of  votes, 
the  votes  to  be  verbal.  If  such  majority  is  not  obtained  on  the  first  ballot, 
a  second  vote  shall  be  taken,  restricting  the  vote  to  the  two  persons  who 
shall  have  obtained  the  greatest  number  of  votes  on  the  first  ballot.  If  the 
vote  is  equally  divided,  the  balloting  shall  be  repeated,  but  if  it  again  results 
in  an  equal  division,  the  president  of  the  senate  (for  the  first  election  the 
president  of  the  constitutional  convention)  shall  decide  by  his  vote.  The 
counting  of  the  votes  and  the  verifying  of  these  elections  shall  not  be  made 
without  the  presence  of  three-fourths  of  all  the  members  of  congress. 

Article  85.  The  election  of  the  president  and  vice-president  of  the 
nation  shall  be  concluded  in  a  single  sitting  of  congress,  and  the  result 
thereof,  as  well  as  the  journal  of  the  electoral  proceedings,  shall  be  published 
immediately  through  the  newspapers. 

Chapter  III.  —  Powers  of  the  Executive. 

Article  86.  The  president  of  the  nation  shall  have  the  following  powers: 

1.  He  shall  be  the  chief  magistrate  of  the  nation,  and  shall  have  in  his 
charge  the  general  administration  of  the  country. 

2.  He  may  issue  the  instructions  and  regulations  necessary  for  the  execu- 
tion of  the  laws  of  the  nation,  taking  care  that  the  spirit  of  such  laws  be  not 
changed  by  exceptions  introduced  through  the  said  regulations. 

3.  He  shall  be  the  chief  local  authority  of  the  capital  of  the  nation. 

4.  He  shall  assist,  in  the  manner  provided  by  the  constitution,  in  making 
the  laws,  shall  approve  them,  and  shall  cause  them  to  be  promulgated. 

5.  He  shall  appoint,  with  the  advice  of  the  senate,  the  justices  of  the 
supreme  court  and  of  all  other  inferior  federal  courts. 

6.  He  may  grant  pardons  or  commute  punishments  in  cases  of  offenses 
subject  to  federal  jurisdiction,  upon  report  of  the  proper  court,  except  in  cases 
of  impeachment  by  the  house  of  deputies. 

7.  He  may  place  officials  on  the  retired  list  with  pay,  and  grant  leaves 
of  absence,  and  the  enjoyment  of  pensions  to  widows  and  orphans,  in 
accordance  with  the  laws  of  the  nation. 

8.  He  shall  exercise  the  right  of  national  ecclesiastical  patronage  by  pre- 
senting bishops  for  the  cathedral  churches,  selected  from  three  names  pro- 
posed to  him  by  the  senate. 

9.  He  shall,  with  the  advice  of  the  supreme  court,  grant  or  refuse  passage 
to  decrees  of  the  councils,  bulls,  briefs,  and  rescripts  of  the  Supreme  Pontiff 
of  Rome ;  but  said  grant  or  refusal  shall  be  made  by  law  whenever  such  eccle- 
siastical enactments  contain  provisions  of  a  general  or  permanent  character. 


Appendix  B  149 


10.  He  shall  appoint  and  remove,  with  the  advice  of  the  senate,  the 
ministers  plenipotentiary  and  charges  d'affaires,  and  by  himself  alone,  with- 
out senatorial  action,  ministers  of  state,  officials  of  the  departments,  consular 
agents,  and  all  the  government  employees  whose  appointment  is  not  otherwise 
provided  for  by  this  constitution. 

11.  He  shall  open  the  annual  sessions  of  congress,  both  houses  assembling 
for  that  purpose  in  the  hall  of  the  senate;  on  this  occasion  he  shall  furnish 
information  as  to  the  condition  of  the  nation,  of  the  reforms  promised  by  the 
constitution,  and  shall  recommend  to  the  consideration  of  the  houses  such 
measures  as  he  may  deem  necessary  and  expedient. 

12.  He  may  extend  the  regular  session  of  congress  or  convene  it  in 
extraordinary  session,  when  some  grave  interest  of  order  or  progress  may 
require  it. 

13.  He  shall  cause  the  revenue  of  the  nation  to  be  collected,  and  shall 
decree  the  disbursement  thereof  in  accordance  with  the  law  or  budgets  of 
national  expenses. 

14.  He  shall  conclude  and  sign  treaties  of  peace,  of  commerce,  of  navi- 
gation, of  affiance,  of  boundaries,  and  of  neutrality,  as  well  as  concordats  and 
all  other  negotiations  required  for  the  maintenance  of  friendly  relations  with 
foreign  powers.     He  shall  receive  their  ministers  and  admit  their  consuls. 

15.  He  shall  be  the  commander  in  chief  of  all  the  land  and  naval  forces 
of  the  nation. 

16.  He  shall  appoint  all  the  military  officers  of  the  nation;  with  the  con- 
sent of  the  senate  when  the  position  to  be  filled,  or  the  rank  to  be  given,  is 
that  of  a  superior  officer  in  either  the  army  or  the  navy,  and  by  himself 
when  the  appointments  are  made  on  the  battlefield. 

17.  He  shall  dispose  of  the  land  and  naval  forces  of  the  nation  and  shall 
attend  to  their  organization  and  distribution,  according  to  the  necessities  of 
the  nation. 

18.  With  the  authority  and  approval  of  congress,  he  may  declare  war  and 
grant  letters  of  marque  and  of  reprisal. 

19.  With  the  consent  of  the  senate,  in  case  of  foreign  invasion,  he  may 
declare  one  or  more  places  in  the  nation  to  be  in  a  state  of  siege  for  a  limited 
time.  In  case  of  internal  troubles  he  may  exercise  such  power  only  during  the 
recess  of  congress,  for  such  power  belongs  to  that  body.  The  president  shall 
exercise  this  power  within  the  limitations  established  by  article  23. 

20.  He  may  require  whatever  information  he  may  desire  from  the  chiefs 
of  all  bureaus  and  departments  of  the  government  and  through  them  from 
other  officials,  and  they  shall  be  obliged  to  furnish  it. 

21.  The  president  shall  not  leave  the  national  capital  without  the  per- 
mission of  congress.  During  the  recess  of  the  latter  he  may,  however, 
absent  himself  from  the  capital  without  such  permission,  if  some  grave 
necessity  of  the  public  service  shall  demand  it. 

22.  The  president  shall  have  the  power  to  fill  those  vacancies  which  re- 
quire the  consent  of  the  senate,  and  which  occur  during  a  recess,  by  means 
of  appointments  which  shall  expire  at  the  close  of  the  next  session. 

Chapter  IV.  —  The  Ministers  of  the  Executive  Power. 

Article  87. '  Eight  ministers  or  secretaries  shall  have  charge  of  the  affairs 
of  the  nation,  and  shall  countersign  and  attest  the  acts  of  the  president  by 
means  of  their  signatures;  these  acts  shall  not  be  valid  without  such  counter- 
signature.    A  special  law  shall  determine  the  business  of  each  department. 

1  See  article  as  amended  March  15,  1898,  p.  153. 


150  The  Federal  System  of  the  Argentine  Republic 

Article  88.  Each  minister  is  individually  responsible  for  the  acts  signed 
by  himself,  and  jointly  with  the  other  ministers  for  all  acts  agreed  upon  be- 
tween him  and  his  colleagues. 

Article  89.  The  ministers  shall  not,  in  any  case,  take  individual  action 
on  any  subject,  unless  it  concerns  only  the  internal  government  of  their  own 
respective  departments. 

Article  90.  As  soon  as  congress  opens  its  sessions,  each  minister  shall 
submit  to  it  a  detailed  report  on  the  state  of  the  nation,  in  all  that  relates  to 
the  business  of  his  own  department. 

Article  91.  Xo  minister  shall  become  either  senator  or  deputy  without 
first  resigning  his  position  as  minister. 

Article  92.  Ministers  may  attend  the  sessions  of  congress  and  take  part 
in  the  debates,  but  shall  have  no  vote. 

Article  93.  Ministers  shall  receive  for  their  services  a  salary  established 
by  law;  but  this  salary  shall  not  be  increased  or  diminished  in  favor  of  or 
against  the  incumbent  of  the  position. 

Section  Thibd.  —  The  Judicial  Power. 
Chapter  I.  —  lis  Xature  and  Duration. 

Article  94.  The  judicial  power  of  the  nation  shall  be  vested  in  a  supreme 
court  of  justice  and  in  such  other  inferior  courts  as  congress  may  establish 
in  the  national  territory. 

Article  95.  The  president  of  the  republic  shall  in  no  case  exercise  judi- 
cial functions,  assume  jurisdiction  of  any  pending  case,  or  reopen  cases  already 
decided. 

Article  96.  The  judges  of  the  supreme  court  and  of  the  inferior  courts  of 
the  nation  shall  hold  their  offices  during  good  behavior,  and  shall  receive  for 
their  services  a  compensation  to  be  fixed  by  law,  which  shall  not  be  diminished 
in  any  manner  while  they  remain  in  the  exercise  of  their  functions. 

Article  97.  Xo  person  shall  be  a  member  of  the  supreme  court  of  justice 
who  is  not  a  lawyer,  with  eight  years'  practice  in  the  national  courts,  and  has 
not,  furthermore,  the  qualifications  necessary  to  be  a  senator. 

Article  98.  On  the  first  assembling  of  the  supreme  court,  the  members 
thereof  shall  take  an  oath,  which  shall  be  administered  to  them  by  the  presi- 
dent of  the  nation,  to  fulfill  their  duties  by  administering  justice  well  and 
legally  and  in  accordance  with  the  provisions  of  the  constitution.  In  the 
future  the  oath  shall  be  administered  to  them  by  the  president  of  said  court. 

Article  99.  The  supreme  court  shall  make  rules  for  the  transaction  of 
its  business,  and  shall  appoint  all  its  subordinate  employees. 

Chapter  II.  —  Functions  of  the  Judicial  Power. 

Article  100.  The  supreme  court  and  the  inferior  courts  of  the  nation 
shall  try  and  decide  all  cases,  not  enumerated  in  clause  11  of  article  67,  which 
arise  under  the  provisions  of  this  constitution,  the  laws  of  the  nation,  or 
treaties  with  foreign  powers:  in  cases  concerning  ambassadors,  public  minis- 
ters, and  foreign  consuls;  in  cases  of  admiralty  and  maritime  jurisdiction; 
in  controversies  to  which  the  nation  is  a  party;  in  cases  which  arise  between 
two  or  more  provinces,  between  one  province  and  citizens  of  another  province, 
between  citizens  of  different  provinces,  and  between  a  province  or  its  citizens 
and  a  foreign  state  or  its  citizens. 


Appendix  B  151 


Article  101.  In  the  above  mentioned  cases  the  supreme  court  shall  have 
appellate  jurisdiction,  under  such  rules  and  exceptions  thereto  as  congress 
may  establish.  But  in  all  cases  concerning  foreign  ambassadors,  ministers, 
and  consuls,  and  in  those  to  which  a  province  may  be  a  party,  the  jurisdic- 
tion of  the  court  shall  be  original  and  exclusive. 

Article  102.  The  trial  of  all  ordinary  crimes,  except  in  cases  of  im- 
peachment, which  belong  to  the  house  of  deputies,  shall  be  by  jury,  as  soon 
as  this  institution  shall  be  established  in  the  republic.  Such  trials  shall  take 
place  in  the  province  where  the  offense  shall  have  been  committed;  but  when 
the  offense  shall  have  been  committed  outside  the  boundaries  of  the  nation, 
and  in  violation  of  the  law  of  nations,  congress  shall  determine,  by  a  special 
law,  the  place  in  which  the  trial  shall  take  place. 

Article  103.  Treason  against  the  nation  shall  consist  only  in  taking 
up  arms  against  it  or  in  joining  its  enemies  and  lending  them  aid  and  succor. 
Congress  shall  by  a  special  law  determine  the  penalty  for  this  crime,  but  the 
punishment  shall  not  go  beyond  the  person  of  the  offender,  nor  shall  any 
infamy  resulting  therefrom  attaint  his  relatives,  whatever  the  degree  of 
relationship. 

TITLE  SECOND.  —  PROVINCIAL  GOVERNMENTS. 

Article  104.  The  provinces  retain  all  powers  not  delegated  by  the  present 
constitution  to  the  federal  government  and  those  which  they  may  have 
expressly  reserved  by  special  agreements  at  the  tune  of  their  coming  into  the 
union. 

Article  105.  The  provinces  shall  have  their  own  local  institutions  and 
shall  be  governed  by  them.  They  shall  elect  their  governors,  legislators,  and 
other  provincial  officers  without  intervention  of  the  federal  government. 

Article  106.  Each  province  shall  enact  its  own  constitution,  in  accordance 
with  the  provisions  of  article  5. 

Article  107.  With  the  knowledge  of  the  federal  congress,  the  provinces 
may  enter  into  partial  treaties  for  the  purposes  of  the  administration  of  justice, 
the  regulation  of  financial  interests,  and  the  execution  of  public  works  of 
common  utility;  they  may  promote,  by  means  of  protective  laws  and  at  their 
own  expense,  industry,  immigration,  the  construction  of  railways  and  navi- 
gable canals,  the  colonization  of  provincial  lands,  the  introduction  and  estab- 
lishment of  new  industries,  the  importation  of  foreign  capital,  and  the 
exploration  of  their  rivers. 

Article  108.  The  provinces  shall  not  exercise  any  power  delegated  to 
the  nation.  They  shall  not  enter  into  any  partial  treaties  of  a  political 
character,  pass  laws  relating  to  domestic  or  foreign  commerce  or  navigation; 
establish  provincial  custom-houses;  coin  money;  or  create  banks  of  issue, 
without  authority  from  the  federal  congress;  nor  shall  they  enact  any  civil, 
commercial,  criminal,  or  mining  codes  after  congress  has  enacted  such  codes, 
or  especially  pass  laws  on  the  subjects  of  citizenship,  naturalization,  bank- 
ruptcy, and  counterfeiting  of  money  or  forging  of  government  documents; 
nor  shall  they  establish  tonnage  dues,  arm  war  vessels,  or  raise  armies,  except 
in  case  of  foreign  invasion  or  of  such  danger  so  imminent  as  to  admit  of  no 
delay,  immediately  giving  account  thereof  to  the  federal  government;  nor  shall 
they  appoint  or  receive  foreign  agents,  or  admit  new  religious  orders. 

Article  109.  No  province  shall  declare  or  wage  war  against  another. 
Their  complaints  shall  be  submitted  to  and  settled  by  the  supreme  court  of 
justice.    Actual  hostilities  on  the  part  of  one  province  against  another  shall 


151  The  Federal  System  of  the  Argentine  Republic 

be  deemed  acts  of  civil  war,  seditious  and  riotous,  which  the  federal  govern- 
ment shall  put  down  and  repress  according  to  law. 

Article  110.  The  governors  of  the  provinces  shall  be  the  natural  agents 
of  the  federal  government  for  the  enforcement  of  the  constitution  and  of  the 
laws  of  the  nation. 

Hall  of  Sessions  of  the  National  Convention  at  the 

City  of  Santa  Fe  on  the  25th  day  of  September,  1860. 


AMENDMENTS  TO  CONSTITUTION. 
Amendments  Adopted  September  12,  1866. 

The  national  convention  enacts  the  following: 

First.  That  part  of  article  4  of  the  national  constitution  which  reads: 
"Until  1866,  in  conformity  with  the  enactments  of  article  67,  clause  1," 
shall  be  stricken  out,  the  said  article  to  read  as  follows: 

"The  federal  government  shall  defray  the  expenses  of  the  nation  with 
funds  of  the  national  treasury,  consisting  of  receipts  from  import  and 
export  duties;  proceeds  of  the  sale  or  lease  of  national  lands;  revenue  of 
the  postal  service;  taxes  levied  by  the  general  congress  equitably  and  in 
proportion  to  the  population,  and  moneys  obtained  through  loans  and 
financial  operations  decreed  by  congress  for  urgent  national  necessities  or 
for  works  of  national  utility." 

Second.  The  last  part  of  clause  1,  article  67,  which  reads:  "Up  to  1866, 
at  which  time  they  shall  cease  to  be  either  national  or  provincial  taxes," 
shall  be  stricken  out,  so  as  to  make  said  clause  read  as  follows: 

"  (1)  To  legislate  in  regard  to  custom-houses  and  foreign  commerce  and 
establish  import  duties  which,  as  well  as  the  rates  of  appraisement  on  which 
they  must  be  based,  shall  be  uniform  in  the  whole  nation,  it  being  under- 
stood, however,  that  these  duties  and  all  other  taxes  of  national  character 
may  be  paid  in  the  currency  of  the  respective  provinces  at  their  just  equiva- 
lent value.    And  to  establish  likewise  export  duties." 


Amendments  Adopted  September  19,  1S68. 

The  Senate  and  the  Chamber  of  Deputies,  etc. 

Article  1.  In  case  of  vacancy  of  both  the  presidency  and  vice-presidency 
of  the  nation,  the  executive  power  shall  be  vested  first  in  the  president  pro 
tempore  of  the  senate,  second  in  the  speaker  of  the  chamber  of  depun  - 
and  third  in  the  chief  justice  of  the  supreme  court. 

Article  2.  For  the  purposes  of  this  law  each  chamber  shall  appoint  its 
presiding  officer  thirty  days  before  the  closing  of  the  ordinary  session. 

.Article  3.  The  official  called  upon  to  discharge  the  duties  of  the  execu- 
tive, according  to  article  1  of  this  law,  shall,  if  the  absence  or  disability  of 
the  president  and  vice-president  be  permanent,  order  a  new  election  of  presi- 
dent and  vice-president  to  be  held  within  thirty  days  after  his  installation  in 
office. 

Article  4.  The  functionary  who  shall  exercise  the  executive  power  in 
the  cases  of  article  1  of  thi~  law  shall,  on  entering  upon  the  discharge  of  his 
duties,  take  before  congress,  and  in  its  absence  before  the  supreme  court  of 
justice,  the  oath  prescribed  by  article  80  of  the  constitution. 


Appendix  B  153 


Amendments  Adopted  Marcu  15,   1898. 

The  national  convention  assembled  in  the  capital  of  the  republic,  in 
pursuance  of  law  No.  3507  of  September  3,  18G7,  sanctions: 

Kirst.  Articles  37  and  87  of  the  national  constitution  are  hereby  amended 
as  follows: 

"Article  37.  The  chamber  of  deputies  shall  consist  of  deputies  elected 
directly  and  by  plurality  of  votes,  by  the  people  of  the  provinces  and 
of  the  capital,  which  shall  be  considered  for  this  purpose  as  mere  electoral 
districts  of  a  single  state.  The  election  shall  be  in  the  proportion  of  one 
deputy  for  each  thirty-three  thousand  inhabitants  or  fraction  thereof  of  not 
less  than  sixteen  thousand  five  hundred.  After  the  taking  of  each  census 
congress  shall  fix,  according  to  its  results,  the  rate  of  representation,  which 
in  no  case  shall  be  less  than  that  now  established. 

"  Article  87.  Eight  secretaries  of  state  shall  have  charge  of  the  affairs  of 
the  nation,  and  shall  countersign  and  attest  all  acts  of  the  president,  which 
without  this  requisite  shall  lack  validity.  A  special  law  shall  determine  the 
business  of  each  department." 


APPENDIX  C. 
SUMMARY  OF  ARGENTINE  ELECTORAL  LAW. 

(1)  Governed  by  Law  Xo.  8871  of  February  13.  1012. 

All  citizens,  native  or  naturalized,  of  18  years  of  age  or  over,  are  national 
electors. 

Exclusions:  By  reason  of  incapacity,  peculiar  status  or  unworthiness. 

Suffrage  is  individual  and  obligatory.  Only  those  persons  are  exempt  who 
are  over  70  years  of  age,  and  the  judges  and  assistants  who  must  act  as  such, 
during  the  hours  of  the  election. 

Election  of  Deputies. 

Must  take  place  throughout  the  country  in  the  month  of  March  of  all 
years  of  even  number;  extraordinary  elections  for  vacancies  must  take  place 
during  the  ordinary  periods,  on  the  holiday  designated  by  the  Assembly. 
The  deputies  remain  four  years  in  office  and  may  be  reelected.  They  are 
renewed  by  one-half  every  two  years. 

Election  of  Senators  by  the   Provinces. 

For  the  ordinary  renovation  of  the  Senate  the  Legislative  Chambers 
meet  and  name  Senators  by  plurality  of  votes,  before  the  first  of  March 
of  the  3Tear  of  renovation.  They  remain  nine  years  in  office  and  may  be  re- 
elected.   The  Senate  is  renewed  by  thirds  every  three  years. 

In  case  of  extraordinary  vacancy  notice  to  be  given  to  the  corresponding 
Government  which  must  immediately  instruct  the  Legislature  to  celebrate 
within  15  days  the  reelection  of  a  new  Senator. 

Senators  for  the  Capital. 

(2)  The  two  senators  for  the  Federal  Capital  are  elected  by  a  committee 
of  citizens  elected  in  turn  by  popular  vote. 

Electoral  Precincts. 

In  the  capital  of  the  Republic  as  well  as  in  the  capitals  and  cities  of  the 
Provinces,  each  police  section  constitutes  an  electoral  precinct.  In  each  of 
these  precincts  are  assigned,  by  numbers,  as  many  tables  for  receiving  votes 
as  there  are  series  composed  of  200  registered  citizens  each,  living  within  the 
precinct. 

If  there  is  a  fraction  of  less  than  200  but  over  100  it  constitutes  a  table. 
If  the  fraction  is  less  than  100  or  disperse,  it  is  incorporated  in  the  nearest 
Bene  or  scries. 

A  rural  population  of  over  250  registered  citizens  constitutes  an  electoral 
precinct.  For  fractions  composed  of  less  than  100  the  same  proceeding  is 
observed  as  that  adopted  in  the  capitals  and  cities. 

Every  group  of  more  than  150  registered  citizens,  dispersed  in  small 
villages  or  isolated  dwellings  in  the  country,  constitutes  also  an  electoral 
precinct,  in  a  single  table. 

154 


Appendix  C  155 


If  the  group  consists  of  less  than  150  it  is  incorporated  in  the  nearest 
precinct  in  its  department  or  district. 

In  the  elections  of  national  deputies,  electors  of  Senators  for  the  Capital 
and  electors  of  President  and  Vice-President,  each  elector  may  only  vote  for 
the  two-thirds  part  of  the  Dumber  to  elect,  and  in  case  of  a  fraction  of  that 
number,  for  one  candidate  more.  When  the  election  is  for  one  or  two  national 
deputies,  each  elector  may  give  his  vote  to  an  equal  number  of  candidates. 

Examples: 

When  1  is  elected  l  is  voted  for. 

When  2  are  elected  2  are  voted  for. 

When  1 1  are  elected  as  many  as  8  may  be  voted  for. 

When  12  are  elected  as  many  as  8  may  be  voted  for. 

That  is  to  say,  the  majority  is  shown  in  the  even  two-thirds  part,  and  is 
maintained  in  the  fraction  not  divisible  by  three. 

Those  persons  are  proclaimed  deputies  and  electors  of  Senators  and 
President  and  Vice-President  who  receive  the  greater  number  of  votes, 
until  the  number  of  candidates  to  be  elected  is  completed,  in  accordance 
with  the  Assembly,  whatever  list  or  lists  they  may  figure  in. 

If  in  completing  the  representation  various  candidates  receive  an  equal 
number  of  votes,  the  question  is  resolved  by  the  Inspection  Committee  by 
drawing  lots. 

When  in  the  elections  of  renovation  votes  are  also  cast  for  extraordinary 
vacancies,  the  drawing  of  lots  determines  which  deputies  shall  fill  such  vacan- 
cies, provided  the  question  is  not  clearly  established  by  the  election.  The 
drawing  is  verified  by  the  Chamber  of  Deputies. 

The  object  of  election  by  incomplete  list  is  to  give  representation  to  the 
minority.  The  system  was  adopted  in  order  to  avoid  the  triumph  of  a  single 
list,  that  of  the  majority  which  was  the  result  of  voting  by  a  complete  list, 
and  also  to  avoid  unfairness  in  the  list  by  sections  (circunscripcion). 

At  the  present  time,  it  will  be  observed,  the  system  in  use  only  gives 
representation  to  one  minority.  The  suggestion  has  been  made  of  presenting 
a  modification  which  would  agree  to  representation  by  quotient. 

The  census  of  the  republic  as  taken  in  the  year  1914  was  approved  for 

1919,  that  is  to  say,  8,090,084  inhabitants,  7,886,294  inhabitants  being  fixed 
as  the  nominal  registered  population,  it  then  being  necessary  to  elect  158 
deputies,  or  one  for  every  49,000  inhabitants  or  fraction  not  inferior  to  16,500. 
It  was  also  resolved  not  to  divide  the  representation  which  at  that  time 
corresponded  to  the  electoral  districts  and  the  representation  was  increased 
by  two  deputies,  it  being  established  that  after  the  biennial  renovation  of 

1920,  there  would  be  160  deputies.  The  representation  maintained  corre- 
sponded to  the  Provinces  of  Salta  and  Catamarca.  The  last  election  was 
effected  in  accordance  with  these  resolutions. 


APPENDIX   D. 


STATISTICS  OF  ILLITERACY. 


Census:  The  National  Census  of  1914,  the  last  taken  (Tercer  Censo 
Nacional,  Tomo  III,  p.  321  et  seq.),  shows  that  in  all  the  republic  of  a  total 
of  6,301,961  persons  of  seven  years  and  over  there  were  2,213,916  wholly 
illiterate  (i.e.,  could  not  read  norwrite),  172,096  partially  illiterate  (i.e.,  could 
read  but  not  write),  and  3,915,949  literate  (i.e.,  could  read  and  write).  The 
figures  include  both  Argentines  and  foreigners. 

For  Argentines  the  figures  are:  wholly  illiterate,  1,471,225;  partiallv 
illiterate,  112,682;  literate,  2,420,406.  Percentage  of  (total)  illiteracy  36.74 
per  cent. 

For  foreigners:  wholly  illiterate,  742,691;  partially  illiterate,  59,414; 
literate,  1,495,544.    Percentage  of  illiteracy,  32.32  per  cent. 

In  12  of  the  26  territorial  divisions  (16  provinces  and  10  territories)  the 
number  of  wholly  illiterate  exceeded  the  number  who  could  read  and  write, 
viz.,  Provinces  of  Corrientes,  Santiago  del  Estero,  Tucuman,  La  Rioja,  Cata- 
marca,  Salta,  Jujuy,  and  the  Territories  of  Chaco,  Formosa,  Los  Andes, 
Neuquen,  and  Rio  Negro. 

Electoral:  The  registration  of  voters  for  1916,  to  which  reference  is 
made  in  the  text,  for  the  16  electoral  districts,  shows  the  following  numbers 
and  percentages  of  illiteracy  (Tercer  Censo  Nacional,  Tomo  IV,  p.  479  et  seq.) : 


Electoral  district. 

Total 
registered. 

Literate. 

Per  cent. 

Illiterate. 

Per  cent. 

Federal  Capital 

PROVINCES. 

Buenos  Aires  (North) 
"     (South). 

Santa  Fe 

Entre  Rios 

165,222 

188,118 

104,766 

1 -'4,152 

80,018 

69,771 

139,059 

25,869 

56,532 

22,403 

77,249 

18,070 

44,039 

23,247 

30,729 

14,520 

1,183,764 

158,642 

136,992 
67,247 
85,788 
41,640 
33,674 
77,409 
16,070 
21,668 
12,513 
36,011 
9,278 
25,336 
12.645 
16,167 
7,624 

761,704 

96.02 

72.82 
64.19 
69.10 
55.80 
48.26 
55.H7 
62.12 
3S.33 
55.85 
44.62 
51.54 
57.53 
54.39 
52.61 
52.50 
64.35 

6,580 

51,126 
37,519 

3S,;i<-.t 

35,37s 
36,097 
61,650 

9,799 
34,864 

9,890 
41,238 

S,7'.I2 
18,703 
10,602 
14,562 

6.S96 
422,060 

3.98 

27.17 
35.81 
30.90 
44.20 
51.74 
14.33 
37.88 
61.67 
44.15 
53.58 
48.46 
42.47 
45.61 
47.39 
47.50 
35.65 

Cordoba 

Santiago  del  Estero  . . 
Catamarca 

Salta 

Whole 

156 


INDEX. 


Acuerdos  de  Gabinete,  97 

Adaro,  Esteban  P.,  78 

Aguiar,  H.  D.,  87 

Alberdi,  Juan  Bautista,  36,  43,  CO,  C5,  70 

Alcorta,  Amaneio,  113,  121-2 

Alcorta,  Kigueroa,  9,  83 

Aliens,  117,  126 

Alsina,  Valentino,  37-8 

Amendments,  constitutional 

Of  1860,     33,45-54,06,71,75-6,109- 
10,  114 

Of  1866,     53-4, 152 

Of  186S,     152 

Of  1S80,     33 

Of  1898,     33,  54,  94,  153 

To  provincial  constitutions,  66 
Anarchy,  16,  19,  30-1,  34-7,  65 
Area,  5 
Artigas,  34 
Ayarragaray,  Lucas,  19 

Ballot,  11,92-3,98,  101-2 
Bankruptcy,  51,  56-7,  59,  110 
Banks,  59 
Barrequero,  72 
Bolivia,  18,  29 
Bonds,  sanitary,  63-4 
Borchard,  Edwin,  108 
Brazil,  28,  35 
Budget: 

National,  10,  96-7,  104 
Provincial,  5,  56,  68 
Buenos  Aires  (city),   17-8,  20,  24-7,  30, 

33-5,  38,  41,  43-4,  49,  52-3,  81,  91, 

96,  102,  106,  123 
Buenos  Aires  (province),  5,  18,  20-2,  24, 

28,  30-1,  34-49,  52-3,  58,  61,  65,  66, 

100,    102,    109-10,    114-15,    122-6, 

130-1 

Cabildo,  23-31,  34 

Cahildo  Abierto,  18,  24-5 

Cabinet,  51,  54,  94,  96-7,  99,  103 

Caceres,  121 

Capital,  national,  35,  43-5,  53,  100 

Capital  punishment,  47 

del  Carril,  43 

Caseros,  battle  of,  37 


Cases  cited: 

Aloy  and  Echevarria,  115 
in  re  Duncan,  72,  87 
Luther  vs.  Borden,  72 
ex  parte  Milligan,  118-9,  124 
Catamarca,  city  of,  64 
Catamarca,  province  of,  6,   12,  28-9,  35, 

38,  49,  64-5,  100,  102 
Caudillos,  19 
( lentraJ  America,  15 
Cepeda,  44 

Chalcatano,  Cesareo,  128 
Chamber  of  Deputies,  10,  49-50,  52-4,  77, 

95,  99,  100-3 
Charles  III,  28,  64 
Chicago,  74 
Chile,  3,  28 
Church,  127-9 

Citizenship,  13-4,  50-1,  56,  59,  102 
Codes: 

Civil,  51,  56,  59,  60,  106,  109,  125-6 
Commercial,  51,  56,  59,  60,  106,  109- 

10,  125 
Mining,  51,  56,  59,  60,  106,  109,  125 
National,  50,  56,  59,  60,  106,  109-10, 

114,  125 
Penal,  51,  56,  59,  60,  106,  109,  116, 

125-6 
Provincial,  114-5 
Colonial  period,  3,  4,  16-20,  23,  25,  29,  30, 

57,  59,  64,  70,  127,  129 
Commerce,  34,  39,  42,  56,  59,  61 
Congress,  8,  10-1,  34,  46,  49,  50-62,  65-7, 
72-3,  76,  78-80,  84,  91,  93,  95-100, 
108, 110, 114, 117, 119-23, 125, 127-9 
Constitutions: 

Alberdi  draft,  43,  70 

Buenos   Aires,   province   of,   66,    115, 

125-6 
French,  94,  113 

Provincial,  51-2,  65-7,  114-5,  120,  125 
Of  1817,     34,  60 

Of  1819,    20,  30,  34,  35,  113-4,  128 
Of  1826,     20,  30,  35,  114,  128 
Of  1853,    4-5,   22,   33-5,   42-51,   65, 
69,  75,  93-4,  99,  108-10,  114,  117, 
121,  124,  128,  131 


157 


158 


Index 


Constitutions  —  continued. 
Federal: 

Amendments,    1S66,    186S,     152; 

1898,  153 
Cabinet,  149-50 
Congress,  powers  of,  144-6 
Declarations,  rights,  and  guaran- 
tees, 137-41 
Deputies,  House  of,  141-2,  143 
Election  of   President .  and  Vice- 
President,  147-8 
Executive  power,  140-7,  148-9 
Judicial  power,  150-1 
Legislative  power.  141 
Preamble,  137 

Provincial  governments,  151-2 
Senate,  142-3 
Constitutional  development,  36,  91 
Constitutional  guarantees,  34,  4S,  113-124. 

130-1 
Constitutional  reorganization,  16,  20,  3>.  91 
Conventions,  constitutional: 

Of  1S10,  Revolutionary,  18,  25,  20 
Of  1S12-1S13,    United    Provinces    of 

River  Plate,  17,  27,  33-4,  128 
Of  1S16,     Tucuman,  27,  34,  91 
Of  1S17,     34 
Of  1S19,     21,  30 
Of  1S24.     25 
Of  1S24,    35 
Of  1S26,    21 

Of  1S52,     19, 21, 33, 37-13. 65-7, 70. 92 
Of  1S60,   Buenos  Aires,   Province   of, 

44-52,  66 
Of  1S60,  Santa  Fe,  45-52,  66,  71,  109, 

122 
Of  1S66,  Santa  Fe,  46,  54 
Cordoba,  citv  of,  64 
Cordoba,  province  of,  10,  12.  24.  2S-9,  34- 

5,  38,  49,  61,  64,  75,  100,  102 
Cordoba  del  Tucuman,  intendencia  of,  28 
Corrientes,  city  of,  63 
Corrientes,  province  of,  9,  10.  12.  28    - 
31,  34,  35,  38,  49,  61,  65,  75-0.  79- 
80,  100,  102,  120-3 
Cour 

District,  108 

Ecclesiastical,  109 

English,  107 

Federal,  4S,  56,  59,  108-11,  125 

Inferior,  51,  56,  10S 

Provincial,  48,  56,  59,  67,  109-12,  115 

Supreme,  51,  56,  61,  108-9,  112,  115, 

120-1,  K 
Supreme,  of  Buenos  Aires,  115.  I- 
Customs  dues,  39,  41.  44.  47,  50,  52-3 
Customs  houses,  50,  54-0 
Cuyo,  3,  28,  29 


Declaration  of  Independence,  19,  21,  25, 

34,  37,  60,  91 
Derqui,  53 

Differential  duties,  44,  47 
Dimet,  79 
Drainage,  5,  55,  63-4 

Economic  conditions,  5,  8,  16-8,  81 
Education: 

Compulsory,  61 

Primary.  5.  7,  46,  61,  66-7 

Private",  61 

Public,  59,  60-1,  68 

Secondary,  7,  61-2 

Universitv,  7,  56,  60-2 
Election  law.  52,  78,  Bl,  95^-9,  101-2 
Elections,  8-11,  27,  52-3,  56,  77-81,  86-8, 

93-3,  97,  99-101 
Electoral  svstem,  Mendoza,  77 
Electors.  5,  27.  92,  101-2 
England,  15,  53 
English  close  corporation,  24 
Entre  Rios,  12.  2S-9.  31.  34-5,  38,  43,  49, 

5S.  61,  04,  70,  100,  102,  122-3 
Estrada,  Jose  Manuel,  5S,  60 
Europe,  15-7,  44,  106.  111-2 
Executive,    8-11,    20,    33-5,    39,    49,    51, 
53-4.   56-7,   75-S1,   S4,   91-9,    100, 
103-4,  107.  117.  119-24.  127-9,  131 
Export  duties,  45-6,  50,  53-5,  59 

Federal   commissioner,  9,   10,   75,   77-S0, 

S4-7 
Federal  intervention,  9-10,  46-7,  69-88 

Buenos  Aires,  52-3 

Chicago,  74 

Cordoba,  10,  75 

Corrientes,  9,  76,  79,  SO 

Entre  Rios,  75 

Jujuy,  75 

Mendoza,  75-7 

Nevada,  74 

Rioja,  70,  75 

Salta.  70.  78 

San  Juan,  9,  70,  75-6,  83-8 

San  Luis,  9,  76,  78 

Santa  Fe,  75 

Santiago  del  Estero,  73 

Tucuman,  80 
Federal  power,  6,  55-7,  64.  67-8,  71—2,  75 
Federation  in  Argentine  and  United  States, 

57 
France,  3,  53 
Franchises,  railroad,  7 
Frias,  Jose  A.,  87 

Gacitua,  Cornelio  Moyano,  84,  >  7 
Galan,  40 


Index 


169 


( tarda,  Juan  Agustin,  jr.,  19 

La  Plata,  28 

bO|  12,  17 

I.aprida,  91 

( tomany,  i 

Latin  America,  15-6 

Godov,  Manual  J.,  9,  84 

acts,  decrees,  resolutions,  statutes): 

Gonzalez,  Joaquin  V.,  28-9,  33,  64,  00,  119, 

1  jiglish  common  law,   16 

125 

Royal  ordinances  of  Charles  III,  28,  64 

Gonzalez,  Kamon,  83 

Spanish  civil  and  criminal,  60 

Government 

Substantive,  59 

Autonomy,  local,  19,  28,  30,  31 

1803,  64 

Centralized,  3,  18-21,  30,  57 

1811 

33,  17,  113 

Consolidated,    7,    11,    10,    23,    28-31, 

1812 

17,  27,  33 

34-5,  60 

1813 

17,  29,  33-4 

Decentralization,  10,  57 

Ml 

;,9l 

Federalism,  3,  4,  30,  30 

1815 

113 

Federal  system,  3,  4,  6-11,  16,  19-21, 

1816 

34 

23,  2S,  30-1,  34,  30,  38,  42-3,  52, 

1817 

34,  91,  94,  113 

60,  66,  68,  78,  83,  86,  88,  125 

1824 

35 

Local,  5,  6,  15-18,  23-4,  36,  59,  66,  7s 

1  S.VJ 

40 

National,  7-9,  21,  23-31,  41,  42,  52, 

1853 

43 

53,  55,  58-61,  63-4,  66,  67-8,  75,  85, 

1854 

121-2 

88,  129 

1855 

122 

National    organization,    19-21,   27-8, 

1857 

70,75 

30-1,  33,  34,  36,  42,  65 

1859 

.7_\  122 

Parliamentary,  94-5 

1860 

52 

Provincial,  5-7,  12,  20,  55,  61-2,  64, 

1861 

52,  122 

70,  75-7,  95,  120 

1862 

53,  122 

Republican  form,  9, 14,  46, 66-72,  75-7, 

1863 

110 

80,  84,  86-8 

1865 

122 

Unitarian  system,  21 

1867 

54 

Governors,  8-10,  24,  28,  34,  38,  39,  49,  50, 

1868 

122 

70,  78-80,  83,  85-8,  95,  103,  117 

1870 

122-3 

1871 

61 

Habeas  corpus,  113-5,  118-9,  121 

1873 

1874,  123 

Historical  development,  65-8 

1876 

123 

1878 

61 

Illiteracy,  5,  12,  81 

1880 

123 

Immigration,  12-4,  24,  28,  56,  60,  62,  107 

1SX1 

61 

Impeachment,  10,  49,  50,  79,  80,  103 

1891 

62 

Indians,  24,  56,  59,  127 

1907 

76,  84,  86-7 

Industry,  59,  61 

1908 

79 

Inquisition,  34 

Legislation: 

Intendencias,  28,  64 

Civil,  59-60 

Intendentes,  16 

Penal,  59-60 

Intervention  (see  Federal.) 

Legislative  authority,  35,  9.5-7,  99-106,  121 

Italy,  3 

Legislatures,  provincial,  10,  102-3,  112,  117 

Libel,  126 

Johnson,  Reverdy,  72 

Lloveras,  Ventura,  83 

Jordan,  Lopez,  122 

Lopez,  Vincente,  37,  40 

Judiciary,  12-3,  26,  48,  51,  107-12 

Lopez,  Vincente  Fidel,  34,  38,  40 

Jujuy,  city  of,  63 

Jujuy,  province  of,  6,  12,  28-9,  35,  38,  49, 

Martial  law,  52,  75, 118,  124 

65,  76,  100,  102 

Martinez,  Juan  E.,  79 

Junta  de  Represcntantes,  35 

Matienzo,  94,  103,  110 

Justice,  12-4,  33,  67 

Mendoza,  city  of,  64 

Mendoza,  province  of,  28,  35,  38,  49,  61, 

Labor,  17,  99 

7.V7,  100,  102,  120 

Land  owners,  17-8,  20 

Military,  .",7   8,  73-5,  101,  103,  105 

La  I'm/,  28 

Misiones, 

28,  29,  35 

160 

Index 

Mitre,  40,  53 

Revenue  —  continued 

Mitre,  Bartholome,  19 

Federal,    5,    6,    41-2,    46,    50,    53-4, 

Molinas,  Nicanor,  "0 

103-4 

poly  privileges,  IS.  34 

Municipal,  7 

Montes  de  Oca,  Manuel  A.,  71.  So 

Provincial,  5. 

Montesclaros,  Marquis  de,  24 

Revolutionary  period,  16-9.  24-6,  30-1,  99 

Montevideo,  IS 

Revolutionary  junta.  26.  35.  S3.  113.  128 

Moreno,  Mariano,  IS 

Revolutions,  22-3,  25,  2S-30,  i 

Moreno.  Ruiz,  96 

Rio  de  la  Plat:     . 

Mowry,  Martin  de,  5 

Rioja,  citv  of,  63 

Rioja,  Province  of,  6,  12.  2S-9,  35,  3S,  49, 

Naturalization,  13,  14,  51,  56,  59,  117 

64-5.  70-1,  75,  100,  102,  120 

Xequen,  6 

Rivadavia.  30 

Nevada,  miners'  strike,  74 

Rivarola.  7.  12.  SI 
Roosevelt,  Theodore,  74 

Orteza,  Victorino.  So 

Rosario,  122 

Rosas,    Juan    Manuel,    3,    4,    16,    19-21, 
31,  35-S,  43,  5S,  65,  91-2 

Palermo.  3S 

Pampa,  6 

Saldias,  Adolfo.  36 

Papal  bulls,  127-9 

Salta,  citv  of,  63 

Parana,  city  of,  64 

Salta,   Province  of,   6,    12,   24,   2S-9,   35, 

Parana,  province  of,  43,  49 

49,  63,  76,  7S,  100,  102 

Paraguay,  2S.  46,  53 
Pavno,  battle  of,  53 

Sanitation,  Municipal,  6S 
San  Juan,  city  of,  63 

Pelliza,  Mariano  A.,  41 

San  Juan,  Province  of,  6,  9,  28-9,  35,  38, 

Pena,  Roque  Saenz,  11,  97 

49.  61,  63-5,  67,  70-1,  75-6,  S3-S, 

Personal  propertv,  17 

100.  102 

Personal  rights.  113-24,  130-1 

San  Luis,  citv  of,  63, 

Peru,  3,  IS,  24,  28 

San  Luis,  Province  of,  6,  9,  12.  28-9,  35, 

Plate  River,  Provinces,  3,  16-19, 

-" 

28, 

IS,  64-5,  75-6,  7S,  100,  102.  120 

33,  35-6,  4S,  60,  128 

San  Martin,  30,  91 

Political  ideas,  7.  1-,  22.  94,  97 

San  Nicolas,  agreement  of,  35,  38-40,  42 

Political  parties,  S,  11,  14,  80-1,  95 

98, 

106 

San  Nicolas  de  los  Arroyi  s.  conference  of,  38 

Population,  5,  12 

Santa  Fe.  citv  of,  39-41.  45-6,  54,  64.  66 

Potosd,  28 

Santa  Fe,  Province  of.  2S-9.  31.  34 

President  (see  Executive.) 

49,61,64,  75,  100,  102,  123 

freedom  of,  4S,  113,  120,  125-6, 

130 

Santiago  del  Estero,  city  of,  63 

Property  rights,  113-24,  130-1 

Santiago   del  Estero.   Province  of,   6,    12, 

Proportional  representation,  49.  54 

78 

100 

L-5,  76.  100,  102 

Provinces,  5-13,  IS,  20-2.  2 

-31, 

34- 

Sarmiento,  19 

42,  44,  16,  49, 52.  54,  59,  60-" 

"1,  75-7. 

Sarmiento,  Car.  5,  83,  87 

S0-3,  85-S,  95-6,  10S-12,  115, 

119, 

■Is  (see  Education.) 

120,  124-5,  129 

Senate,  10.  49-51,  78,  93.  102-3,  119-20, 

Public  opinion,  4,  S.  11.  14.  21.  62,  1 

'3,80- 

123.  128 

100,  103,  106.  121 

Siege,  stat.         57    L19-24 

Public  works,  5,  6,  63-4,  66,  68 

ry,  17,3-1.47.  116 

Puccio,  Eugenio,  79 

8     :al  conditions,  17-21,  37 

Puno,  28 

Socialist  partv,  95,  99 

South  America,  3.  13.  15-6.  IS,  26,  37,  117 

Quesada,  Ernesto,  3,  20,  36-7 

Spain,  11.  13.  LI                    '50.  91,  94-.'.  '.'7. 

Quintans,  Manuel,  9 

107,  112.  127-9 
-    John,  74 

Railroads,  5-7,  56,  60,  62,  74 

Special  privilege.  17   • 

Ramos-Mejia,  Francisco,  23-4,  26, 

30 

Speech,  freedom  of.  120.  1 

Religious  liberty,  56,  126-9 

Strikes: 

Revenue : 

Chicago,  74 

oms  dues,  39,  41,  50,  52 

Nevada,  74 

I  ml 


ex 


1(11 


BubBidics.  C,  7,  56,  62,  68 
Suffrage,  78,  86,  98 

Taxation,  ('.,  7,  24,  26,  41,  46,  55,  59 
Towns,  5,  16,  19-20,  23-31,  34,  61,  64 
Trade,  18,  34 
Treaties 

Agreement  of  June  (i,  1860,     44-5,  48, 

52 
Interprovincial 
1820,     31 

1831,     35,  38-40,  42-3 
Peace,  November  11,  1859,     35,  44-5, 

48. 
Peace  and  commerce,  1S29,     34 
Peace  and  friendship,  1830,    35 
Peace,   friendship   and   alliance,    Oct. 

19  and  Oct.  27,  1829,    35 
Peace,  friendship,   and  offensive   and 

defensive  alliance,  1830,     35 
Pilar,  34 

Quadrilateral,  1822,     31,  34 
San  Nicolas,  1852,     35,  38-9,  42 
November  11,  1S59,     44-5,  48,  52 
Union  and  alliance,  1830,     35 
Trial  by  jury,  51,  56,  111-12,  126 
Tucuman,  city  of,  27,  34,  91 
Tucuman,  Province  of,  6,  12,  28-9,  35,  38, 
49,  SO,  100,  102 

United  States: 

Congress,  72-4,  96 

Constitution,    4,    26,    33,    43,    45-8, 
57-S,  61,  63,  67,  69,  71-4,  87,  94, 
99,  103,  106,  108,  117-8,  121,  131 
Executive,  11,  74,  92-4,  US 
Federal  intervention: 

Miners'  strike,  Nevada,  74 


United  states  —continued 

I  ederal  intervention  —  continued 

Railway  strike,  Chicago,  74 

Historical  development,  iif> 

Immigration,  13-4 

Judiciary,  111,112 

Local  self-government,  6 

Kailroads,  62 

Supreme  court,  61,  72,  88,  112,  118 
I  aiveraa]  military  service  (see  military.) 
Urquisa,  :s7  11,  122 
Urrutia,  Manuel  Alberto,  71,  75-6 

uay,  28-9,  35 

Valle,  Aristobulo  del,  23,  33,  36,  45,  91 

\ar,'la,  Luis  V.,  72,  115 

Vel   '.,  40 

Velez-Sarefield,  Dalmacio,  45 

Viceroyalty: 

Buenos  Aires,  28 

Peru,  28,  66 

River  Plate,  16,  18,  24,  26,  127 
Villanueva,  Benito,  83 

Wallace,  118,  124 
War: 

Argentine  vs.  Buenos  Aires,  122 

Buenos  Aires  and  provinces,  22 

Civil,  31,  34,  122-3 

Paraguayan,  53,  122 
Water  supply,  5,  55,  63-4 
Writ  of  Protection  (see  Habeas  corpus.) 

Yancey,  44 

Zeballos,  Estanislao  S.,  72 
Zuviria,  Facundo,  42 


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